Opinion
24A-JT-1038
09-26-2024
In the Termination of the Parent-Child Relationship of: C.S., III (Minor Child) v. Indiana Department of Child Services, Appellee-Petitioner and A.S. (Mother) and C.S. (Father), Appellants-Respondents
ATTORNEY FOR APPELLANT MOTHER Samuel J. Beasley Muncie, Indiana ATTORNEY FOR APPELLANT FATHER Ronald J. Moore Richmond, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Randolph Circuit Court The Honorable Brian Bade, Special Judge Trial Court Cause No. 68C01-2308-JT-119
ATTORNEY FOR APPELLANT MOTHER
Samuel J. Beasley
Muncie, Indiana
ATTORNEY FOR APPELLANT FATHER
Ronald J. Moore
Richmond, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
Judges Bradford and Foley concur.
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] A.S. ("Mother") and C.S. ("Father") (collectively, "Parents") appeal the trial court's judgment terminating their parental rights to C.S., III ("Child"). We affirm.
Issues
[¶2] We address the following two restated issues on appeal:
I. Whether the termination of Father's parental rights is clearly erroneous.
II. Whether the trial court committed fundamental error when it applied state law to terminate Mother's parental rights.
Facts and Procedural History
[¶3] In August 2021, Parents' parental rights were terminated as to their thirteen-year-old daughter due to their ongoing drug issues, failure to participate in reunification services, and overall instability.
Parents appealed, and this Court affirmed in a memorandum decision. See In re M.S., No. 21A-JT-1876 (Ind.Ct.App. Feb. 25, 2022) (mem.).
[¶4] Child was born to Parents on March 17, 2022. Shortly thereafter, the Indiana Department of Child Services ("DCS") received a report that Child was born "drug-exposed" and that he was going through withdrawal symptoms and having "respiratory distress." Tr. at 36. DCS Family Case Manager ("FCM") Brittany Duffer investigated the report and visited Parents at the hospital. Child had already been transferred to a different hospital due to concerns that he was going through withdrawal symptoms and was having respiratory issues. FCM Duffer saw Child the next day, and he had an oxygen cannula in his nose, an IV in his foot, an NG tube, and monitor sticks on his abdomen.
[¶5] FCM Duffer suggested to Mother that she go into inpatient drug treatment at Volunteers of American where she could take Child with her, but Mother said she did not "really want to go unless she absolutely had to because she didn't want to keep [Child] away from his dad." Id. at 40. Parents were homeless and did not have a place to go with Child once Child was discharged from the hospital. The address Parents had given to the hospital was for a home that had been demolished three or four months earlier.
[¶6] On March 25, DCS removed Child and placed him in foster care because his umbilical cord blood had come back positive for drugs, Child had medical issues, Parents did not want to go to rehabilitation, and Parents were homeless. That same day, DCS filed a petition alleging Child was a Child in Need of Services ("CHINS").
[¶7] DCS referred Parents to Centerstone for an intake and substance abuse assessment, but Parents failed to attend their scheduled appointment. Centerstone then refused to provide Parents with further services, and DCS referred Parents to Meridian Services. However, Parents did not complete substance abuse assessments at Meridian Services either.
[¶8] On October 20, Parents admitted to the CHINS allegations, and the court adjudicated Child to be a CHINS. Specifically, the court found, in pertinent part, that Child "was born with neonatal abstinence syndrome and an amount of a controlled substance, specifically methamphetamine, in his body" and that Child "requires care that parents are not providing and that care is unlikely to be provided without the coercive intervention of the court." Ex. v. III at 48-49. On December 27, 2022, the court entered its dispositional decree and ordered Parents to participate in services, including in pertinent part:
• maintain suitable and stable housing
• refrain from the use of illegal drugs
• compete a parenting assessment and all recommended services
• complete a substance abuse assessment and all recommended treatment
• submit to random drug screens
• attend all scheduled visitation
• participate in homebased casework and individual therapy
• complete an in-patient substance abuse program.
The court also ordered Father to participate in anger management classes.
[¶9] Parents participated in visitation with Child. For the first few months, visits were held in the DCS office, but then they moved to community visits. When Parents visited together, the visits were "often very tense," as if Parents had been fighting prior to the visit. Tr. at 49. During one visit, Parents' fighting required the visitation supervisor to step in and warn them that she would stop the visit if they continued. During another visit, when Father arrived late and was turned away, he picked up a chair, threw it down, and "storm[ed] off." Id. at 52. At another visit, when Father arrived late and was told to leave, he cussed, "tried to slam the door," punched the wall, and kicked or punched the elevator doors as FCM Duffer was in the elevator. Id. at 52. There were ongoing issues throughout the case with Parents not confirming visits or being late. Parents informed FCM Duffer that "they were often times late because they were homeless, and they needed to go to the park to shower." Id. at 55-56.
[¶10] In February 2023, Father successfully completed a rehabilitation program at Recovery Works and thereafter submitted a "few" clean drug screens. Id. at 89. Father's sobriety lasted only approximately four to five weeks, after which he tested positive for drugs and did not provide any more clean drug screens. After Father relapsed, DCS referred Father to recovery coaching through the Jay County Drug Prevention Coalition, and Father participated "for a little while." Id. at 48. DCS also referred Mother to recovery coaching, but she did not "follow through." Id.
[¶11] After he had completed rehabilitation at Recovery Works, Father briefly lived with Paternal Grandfather. However, when Paternal Grandmother also moved into that house, Father, Mother, and Paternal Grandmother were involved in a "domestic incident," and Father was "kicked out of that house." Id. at 59. Since then, Father has been living at a residence close to the DCS office, and Mother lived there with him "on and off." Id. Parents never let FCM Duffer into that house. At one point, Parents told her they were staying in a camper in the backyard of that house, but FCM Duffer was never able to confirm that statement.
[¶12] In March 2023, Parents started visiting Child separately because they had split up, Father was becoming "aggressive" and "combative" toward Mother, and Mother reported that she did not feel safe around Father. Id. at 50. During one visit, Mother appeared to be impaired. Both Parents tested positive for drugs immediately following some visits.
[¶13] On June 8, 2023, the court held a permanency hearing and changed the permanency plan from reunification to adoption. On August 7, DCS petitioned to terminate Parents' parental rights. In late summer/early fall of 2023, Parents continued to test positive for drugs; both tested positive for methamphetamine and amphetamine on August 22, September 15, and October 5, 2023, and Father also tested positive for those drugs on October 10.
[¶14] On October 5, 2023, the court suspended Mother's visits, upon the motion of the Court Appointed Special Advocate ("CASA"), "until [Mother] has completed Phase One of a substance abuse rehabilitation program." Ex. v. III at 69. The CASA made that motion because Child's foster family had found a bag of methamphetamine in one of Child's shoes that had been sent home from Mother during a visit.
[¶15] On December 4, 2023, the court held the termination of parental rights hearing. At that time, Father continued to visit Child. However, since April 2023, Father had missed fourteen visits and had been late for visits approximately thirty-six times. Parents' visitation never moved to unsupervised.
[¶16] Throughout the case, Parents did not consistently submit to random drug screens and, when they did submit to drug screens, they continued to test positive for drugs. Mother "tested positive for methamphetamine the entire case." Tr. at 62. Father continued to test positive for methamphetamine, and he also had some positive screens for fentanyl. FCM Duffer discussed with Parents at every team meeting their need to achieve sobriety to reunify with Child and repeatedly tried to get them into inpatient drug treatment programs. However, FCM Duffer was not aware of Parents participating in any such programs.
[¶17] Parents also had "very unstable housing throughout" the underlying CHINS case, and, at times, they were homeless. Id. at 59. FCM Duffer made referrals to attempt to assist Parents in obtaining stable housing, but Parents never completed the necessary intakes to be able to utilize the housing services. At the time of the termination hearing, Parents had been living together in Winchester since April or May 2023, but their home did not have electricity or running water. Parents did not let FCM Duffer into their home, so she was unaware if they had everything Child needed in the home.
[¶18] FCM Duffer opined it is in Child's best interests that Parents' parental rights be terminated. She believed that Child would not be safe in Parents' care because they would not be able to provide him with "sober supervision," and they could not provide stable housing. Id. at 67. CASA Tara Peschel also opined that it was in Child's best interests for the court to terminate Parents' parental rights. Child continued to live in the same foster home where DCS placed him upon his removal from Parents' care, and Child's foster parents wished to adopt him.
[¶19] On April 3, 2024, the court entered its order terminating Parents' parental rights. The court found, among many other findings, that Parents "are in substantially the same position as they were at the time of the birth of their son." Appealed Order at 6. The court concluded, in pertinent part, "by clear and convincing evidence[,] that it is reasonably probable that the conditions that led to the removal and placement outside the parents' home, namely both parents' persistent drug abuse, addiction, and lack of [a] stable home, will not be remedied to the extent that either [Father] or [Mother] will be able to provide Child with nurturing, stable, and appropriate care that the Child requires on a long term basis." Id. at 8. Both Parents now appeal.
Discussion and Decision
Father's Appeal
Standard of Review
[¶20] Father maintains that the trial court's order terminating his parental rights is clearly erroneous. We begin our review of this issue by acknowledging that the traditional right of a parent to establish a home and raise his or her children is protected by the Fourteenth Amendment of the United States Constitution. See, e.g., In re C.G., 954 N.E.2d 910, 923 (Ind. 2011). However, a trial court must subordinate the interests of the parent 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). Although the right to raise one's own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id. at 836.
[¶21] Before an involuntary termination of parental rights can occur in Indiana, DCS is required to allege and prove, among other things:
(A) that one (1) of the following is true:
* * *
(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(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.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services.
* * *
(C) [and] that termination is in the best interests of the child ....I.C. § 31-35-2-4(b)(2) (2023). DCS must establish only one of the requirements of subsection (b)(2)(B) before the trial court may terminate parental rights. Id. DCS's "burden of proof in termination of parental rights cases is one of 'clear and convincing evidence.'" In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).
[¶22] When reviewing a 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 that are most favorable to the judgment. Id. Moreover, in deference to the trial court's unique position to assess the evidence, we will set aside the court's 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.
[¶23] Here, in terminating Father's parental rights, the trial court entered specific findings of fact and conclusions thereon. When a trial court's judgment contains special findings and conclusions, 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). If the evidence and inferences support the trial court's decision, we must affirm. In re L.S., 717 N.E.2d at 208.
Conditions that Resulted in Removal/Continued Placement
Mother does not join Father in challenging the merits of the trial court's termination decision; rather, she raises only the issue of the constitutionality of the termination statute.
[¶24] Father does not challenge the sufficiency of the evidence to support the findings of fact; therefore, we must accept those findings as correct. See, e.g., Matter of To.R., 177 N.E.3d 478, 485 (Ind.Ct.App. 2021) (citing Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)), trans. denied. Rather, Father alleges that the findings of fact do not support the trial court's ultimate determination that there is a reasonable probability that the conditions that resulted in Child's removal and continued placement outside the home likely will not be remedied. When addressing that issue, we must determine whether the evidence most favorable to the judgment supports the trial court's determination. Id.; Quillen, 671 N.E.2d at 102. In doing so, we engage in a two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). "First, we identify the conditions that led to removal; and second, we determine whether there is a reasonable probability that those conditions will not be remedied." Id. (quotations and citations omitted).
The trial court did not make a finding regarding whether either or both Parents were a threat to Child's well-being.
[¶25] In the first step, we consider not only the initial reasons for removal, but also the reasons for continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind.Ct.App. 2013). In the second step, the trial court must judge a parent's fitness to care for his or her children at the time of the termination hearing, taking into consideration evidence of changed conditions. In re E.M., 4 N.E.3d at 643. The court must also "evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child." Moore v. Jasper Cnty. Dep't of Child Servs., 894 N.E.2d 218, 226 (Ind.Ct.App. 2008) (quotations and citations omitted); see also In re M.S., 898 N.E.2d 307, 311 (Ind.Ct.App. 2008) (noting the "trial court need not wait until a child is irreversibly harmed such that his physical, mental, and social development are permanently impaired before terminating the parent-child relationship"). In evaluating the parent's habitual patterns of conduct, the court may disregard efforts made shortly before the termination hearing and weigh the history of the parent's prior conduct more heavily. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013). DCS is not required to rule out all possibilities of change; rather, it need establish only that there is a reasonable probability the parent's behavior will not change. Moore, 894 N.E.2d at 226.
[¶26] Here, among the reasons for Child's removal from Parents' care was both parents' drug use, homelessness, and general instability. During the more than two years the CHINS and Termination of Parental Rights ("TPR") actions have been pending, Father has failed to remedy these issues. Specifically, as the trial court found:
• Father never participated in substance abuse services through either Centerstone or Meridian Services referral.
• Father completed a rehabilitation program but continued testing positive for drugs thereafter.
• Father was asked to leave some visits early "due to his behavior and concerns for safety." Appealed Order at 4.
• Father was often late for visits.
• Father never completed the necessary referrals to utilize the DCS services to obtain housing.
• Father did not have stable housing throughout the underlying case.
• Father has admitted his need for rehabilitation services.
• Father continued to test positive for drugs.
• Father failed to consistently engage in reunification services.
• Father never progressed beyond supervised visits.
• Father was in "substantially the same position" at the time of the termination hearing as he was at the time of Child's removal. Id. at 6.
[¶27] These findings, which Father admits are accurate and thus unchallenged, support the court's conclusion that there was a reasonable probability Father would not remedy the conditions that led to Child's removal and his continued placement outside of Father's (and Mother's) home. Father's arguments to the contrary are simply requests that we reweigh the evidence, which we may not do. See, e.g., In re D.D., 804 N.E.2d at 265.
Mother's Appeal
[¶28] While Mother does not challenge the merits of the trial court's termination findings and conclusions, she does challenge the constitutionality of the termination statute the court applied; specifically, she alleges Indiana Code Section 31-35-2-4(2)(B)(i) violates the due process required under both the federal and state constitutions by imposing only a "reasonable probability" standard. Mother did not raise this issue in the trial court; therefore, she has waived the issue unless she can show that the court committed fundamental error. See In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) ("[A] party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal."). Fundamental error review is "extremely narrow and available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible." Matter of Eq.W., 124 N.E.3d 1201, 1214-15 (Ind. 2019) (internal quotations and citation omitted).
"[W]e employ the same methodology when analyzing a claimed denial of procedural due process violation of the Due Course of Law Clause of Art. I, § 12, as the Supreme Court [h]as used to analyze claimed violations of the Due Process Clause." Doe v. O'Connor, 790 N.E.2d 985, 988 (Ind. 2003) (citation omitted).
[¶29] We review the constitutionality of a statute de novo. See, e.g., Zoeller v. Sweeney, 19 N.E.3d 749, 751 (Ind. 2014). However, "every statute stands before us clothed with the presumption of constitutionality unless clearly overcome by a contrary showing." KS&E Sports v. Runnels, 72 N.E.3d 892, 905 (Ind. 2017) (internal quotations and citation omitted). The party challenging the statute bears the burden of proof, "and we resolve all doubts against him" or her. Id. at 905-06.
[¶30] In Santosky v. Kramer, the United States Supreme Court held that the preponderance of the evidence standard in termination of parental rights cases violated the Due Process Clause and that the standard must be, at a minimum, clear and convincing evidence. 455 U.S. 745, 768-69 (1982). Since Santosky, this Court has held that the reasonable probability language in Indiana Code Section 31-35-2-4(2)(B)(i) does not violate the Fourteenth Amendment. In re Wardship of R.B., this Court addressed the same issue that Mother raises here: whether the statute's words "reasonable probability" "provides for a lesser standard of proof than is constitutionally permissible" and concluded that it did not. 615 N.E.2d 494, 496 (Ind.Ct.App. 1993), trans. denied. The Court reasoned that, "the Constitutional Due Process requirement of clear and convincing evidence is met when the [DCS] shows by clear and convincing evidence a reasonable probability that conditions resulting in the child's removal from his parent's custody will not be remedied." Id. at 497 (citing Matter of V.M.S., 446 N.E.2d 632, 636 (Ind.Ct.App. 1983)). The Court went on to recognize that "[t]his assures the court that there is, in fact, a high degree of probability that the conditions will not be remedied-a standard considerably above the more likely than not implications of the preponderance requirements." Id. Mother has not shown that this Court now should reach a different result, and in fact, she fails to address or even acknowledge this Court's holdings in In re Wardship of R.B. or Matter of V.M.S. Rather, Mother presents no new arguments that this Court has not already addressed and rejected. Mother has failed to show fundamental error in the trial court's application of Indiana's TPR statutes.
At that time, the statute was codified under Indiana Code section 31-6-5-4(c)(2), but it contained identical language. See In re Wardship of R.B., 615 N.E.2d at 496.
Conclusion
[¶31] The trial court's uncontested findings of fact support its judgment terminating Father's parental rights, and Father has failed to show clear error. In addition, Mother has failed to show that the applicable TPR statutes are unconstitutional such that their application resulted in fundamental error.
[¶32] Affirmed.
Bradford, J., and Foley, J., concur.