In the Matter of the Involuntary Termination of the Parent-Child Relationship of: J.R. and J.M. (Minor Children) and V.R. (Mother) v. The Indiana Department of Child Services (mem. dec.)

I
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                           Dec 30 2020, 9:25 am
court except for the purpose of establishing
                                                                                        CLERK
the defense of res judicata, collateral                                             Indiana Supreme Court
                                                                                       Court of Appeals
estoppel, or the law of the case.                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher C. Crawford                                  Curtis T. Hill, Jr.
Goshen, Indiana                                          Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         December 30, 2020
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of: J.R. and J.M.                           20A-JT-1307
(Minor Children),                                        Appeal from the Elkhart Circuit
And                                                      Court
                                                         The Honorable Deborah A.
V.R. (Mother),                                           Domine, Magistrate
Appellant-Respondent,                                    The Honorable Michael
                                                         Christofeno, Judge
        v.                                               Trial Court Cause No.
                                                         20C01-2001-JT-8
The Indiana Department of                                20C01-2001-JT-9
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020           Page 1 of 14
      Tavitas, Judge.


                                                 Case Summary
[1]   V.R. (“Mother”) appeals the termination of her parental rights to minor

      children, J.R. and J.M (“the Children”). 1 We affirm.


                                                          Issue
[2]   Mother raises a single issue, which we restate as whether the evidence was

      sufficient to terminate Mother’s parental rights.


                                                          Facts
[3]   J.R. was born in March of 2013, and J.M. was born in December of 2015 to

      Mother and C.M. (“Father”). 2 On July 26, 2016, the Elkhart County

      Department of Child Services (“DCS”) received a report regarding the

      Children 3 being potential victims of neglect as a result of Mother’s frequent use

      of both marijuana and cocaine. Subsequent testing revealed that Mother and




      1
       There is some inconsistency in the filings with respect to the naming conventions employed to identify the
      Children. We apply these initials in order to be consistent with the juvenile court’s order terminating
      parental rights.
      2
       Father, whose parental rights were also terminated, did not appear for the termination hearing. The
      Children were not placed with him initially due to his criminal history of battering a child. The record
      suggests that Father’s involvement during the pendency of the CHINS proceedings was extremely rare. He
      does not join in this appeal.
      3
          At that time, J.R. was three years old, and J.M. was seven months old.


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020               Page 2 of 14
      the Children were positive for cocaine. 4 On August 15, 2016, the day of the

      Children’s positive test results, DCS filed a CHINS petition and a motion for

      emergency custody. The juvenile court granted the emergency custody motion

      that same day, and on August 16, 2016, the Children were removed from the

      home. At a hearing on August 23, 2016, Mother admitted that the Children

      were CHINS, and the juvenile court adjudicated them accordingly.


[4]   On October 19, 2016, the juvenile court entered a dispositional order. Mother

      was ordered to: (1) participate in any services and/or programs recommended

      by the DCS case manager “without delay or missed appointments”; (2)

      complete any requested assessments; (3) comply with random drug screens; (4)

      complete a substance abuse assessment; (5) participate in supervised visitation

      with the Children; and (6) participate in parenting education. Appellant’s App.

      Vol. II p. 60.


[5]   Mother’s compliance with the dispositional order, as well as subsequent court

      orders, was less than complete. At a hearing on July 13, 2017, despite Mother’s

      recent positive drug screen for methamphetamine, the DCS case manager

      described Mother as “[o]verall . . . compliant with meeting the minimum

      requirement of the case plan.” Tr. Vol. II p. 48. By May 17, 2018, however,

      the DCS case manager reported, after another recent positive drug screen (this




      4
       It is not clear how the Children managed to ingest cocaine. The juvenile court judge suggested that,
      perhaps because of their very young age, the Children were inclined to put whatever they found in their
      mouths.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020                Page 3 of 14
      time for cocaine), that Mother “has been incarcerated two times since the last

      court hearing.” Id. at 60. By October 18, 2018, Mother had “been incarcerated

      during much of the time since the previous hearing in May. A drug screen

      administered to her on May 24 was positive for cocaine. And, she was arrested

      over the summer and has been incarcerated and unable to participate in

      services.” Id. at 70. Mother periodically “attended classes and [was]

      participating in groups”; however, Mother also struggled to provide required

      nutritional aids for J.M.’s dysphagia 5 and faced eviction. Id. at 80, 92-93.


[6]   Mother’s compliance with visitation was so inconsistent that, by January 9,

      2020, Mother was informed that, if she missed another visit, her visitation

      would be terminated. On January 13, just four days later, Mother missed a visit

      and reported that she “overslept and did not hear her phone ring.” Id. at 115-

      16. The Children’s foster mother (“Foster mother”) reported that Mother

      missed a scheduled visit with the Children on Christmas Eve. The Children

      were nearly three and seven years old at the time. After being ordered to attend

      therapy, Mother’s attendance was intermittent at best.


[7]   DCS filed a petition to terminate parental rights on January 23, 2020. By June

      4, 2020, Mother’s compliance and accountability had deteriorated to the point

      that the DCS case manager reported, “I don’t really know, specifically, where




      5
          Dysphagia is a medical condition characterized by difficulty in swallowing.


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020   Page 4 of 14
       [Mother] lives.” Id. at 133. The juvenile court conducted a fact-finding hearing

       on the termination of parental rights petition on June 12, 2020.


[8]    At the fact-finding hearing, the DCS case manager, Tonya Greenwood, testified

       at length about Mother’s erratic compliance with the CHINS case

       requirements. Greenwood related that, although Mother completed an initial

       ten-week drug course, she repeatedly tested positive for drugs. Mother had

       been incarcerated multiple times, during which visitation with the Children was

       a virtual impossibility. In late 2019, Mother began to experience apparent

       paranoid delusions regarding home invasion. Additionally, the parent-child

       therapy that had been ordered was cancelled after Mother failed to appear for

       the initial intake appointments.


[9]    Next, a family consultant, Nicole Smith, testified that Mother’s visitation had

       been cancelled as a result of missed appointments. Foster mother testified,

       describing J.M.’s medical issues and echoing Greenwood’s concerns regarding

       Mother’s struggles to adequately address those health issues. Foster mother

       also described behavioral issues with both Children, apparently stemming from

       occasions when Mother failed to appear for, or communicate about, visits with

       the Children. Child and family therapist, Geri Bough, confirmed that the cycle

       of Mother’s progress with visitation, followed by inevitable regression, had a

       significant and negative impact on the Children and their behavior.


[10]   Finally, Mother testified and claimed that she had complied with all services

       and attended all visits, however, she also gave a conflicting account and


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020   Page 5 of 14
       admitted that she had missed visits and therapy sessions. Mother also testified

       that she did not believe the Children suffered from any significant difficulties

       associated with visitation, and that both DCS and Foster mother were non-

       responsive to Mother’s phone calls and letters in which Mother sought

       communication with the Children. Mother downplayed her drug addiction and

       testified that she used drugs to “clear [her] head.” Tr. Vol. II pp. 250. Mother

       was unable to explain how the Children tested positive for cocaine.


[11]   On June 16, 2020, the juvenile court entered an order terminating Mother’s and

       Father’s parental rights. The juvenile court entered findings of fact and

       conclusions thereon, including that the Children “have not lived with either

       their mother or father for nearly four years”; that there was a “reasonable

       probability that the continuation of the parent-child relationship poses a threat

       to the well-being of the children”; that “[t]ermination of the Parent-Child

       relationship is in the best interest of [the Children]”; and that “there is a

       satisfactory plan for the care and treatment of [the Children].” Appellant’s

       App. Vol. II pp. 13-14, 18-19, 20. Mother now appeals.


                                                   Analysis
[12]   Mother challenges the termination of her parental relationship with the

       Children. The Fourteenth Amendment to the United States Constitution

       protects the traditional rights of parents to establish a home and raise their

       children. U.S. const. amend. XIV; see also In re K.T.K. v. Indiana Dept. of Child

       Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A]

       parent’s interest in the upbringing of [his or her] child is ‘perhaps the oldest of
       Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020   Page 6 of 14
       the fundamental liberty interests recognized by th[e] [c]ourt[s].’” Id. (quoting

       Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize,

       however, that parental interests are not absolute and must be subordinated to

       the child’s best interests when determining the proper disposition of a petition

       to terminate parental rights. Id. (citing In re G.Y., 904 N.E.2d 1257, 1260 (Ind.

       2009)). Thus, “‘[p]arental rights may be terminated when the parents are

       unable or unwilling to meet their parental responsibilities by failing to provide

       for the child’s immediate and long-term needs.’” K.T.K., 989 N.E.2d at 1230

       (quoting In re. D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).


[13]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.

       2011). We consider only the evidence and reasonable inferences that are most

       favorable to the judgment. Id. We must also give “due regard” to the trial

       court’s unique opportunity to judge the credibility of the witnesses. Id.

       (quoting Ind. Trial Rule 52(A)).


[14]   Pursuant to Indiana Code Section 31-35-2-8(c), “[t]he trial court shall enter

       findings of fact that support the entry of the conclusions required by subsections

       (a) and (b)” when granting a petition to terminate parental rights. 6 Here, the



       6
        Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
       delinquent child or CHINS, provide as follows:

               (a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
                   allegations in a petition described in section 4 of this chapter are true, the court shall
                   terminate the parent-child relationship.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020                    Page 7 of 14
       juvenile court did enter findings of fact and conclusions thereon in granting

       DCS’s petition to terminate Mother’s parental rights. When reviewing findings

       of fact and conclusions thereon entered in a case involving the termination of

       parental rights, we apply a two-tiered standard of review. First, we determine

       whether the evidence supports the findings, and second, we determine whether

       the findings support the judgment. Id. We will set aside the juvenile court’s

       judgment only if it is clearly erroneous. Id. A judgment is clearly erroneous if

       the findings do not support the juvenile court’s conclusions or the conclusions

       do not support the judgment. Id.


[15]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in 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




               (b) If the court does not find that the allegations in the petition are true, the court shall
                   dismiss the petition.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020                       Page 8 of 14
                                           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)      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.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


                                 A. Threat to Well-Being of the Children

[16]   Mother’s claims can be distilled into a challenge to the sufficiency of the

       evidence underlying the juvenile court’s conclusion that a continued parent-

       child relationship threatens the Children’s well-being. 7 When considering




       7
         In Mother’s summary of her argument, she appears to suggest that the termination of her parental rights is
       not in the best interest of the Children. Mother, however, fails to actually make that argument in the
       remainder of her brief, and the issue is, therefore, waived for failure to make a cogent argument. See Ind.
       App. R. 46(A)(8)(a). To the extent that Mother argues that: (1) “the juvenile court inaccurately characterized
       things in its findings of facts, and did not appropriately note the work [Mother] had done to address her
       addictions and parental concerns during the CHINS proceedings in her case”; and (2) “the juvenile court
       failed to properly account for the number of counseling sessions [Mother] had late in the year of 2019, and


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020                Page 9 of 14
       whether there is sufficient evidence to support such a finding, trial courts must

       “consider a parent’s habitual pattern of conduct to determine whether there is a

       substantial probability of future neglect or deprivation.” Bester v. Lake Cty. Office

       of Family & Children, 839 N.E.2d 143, 152 (Ind. 2005). “At the same time,

       however, a trial court should judge a parent’s fitness to care for his [or her] child

       as of the time of the termination proceeding, taking into consideration evidence

       of changed conditions.” Id. “It is well established that ‘a trial court need not

       wait until a child is irreversibly influenced by a deficient lifestyle such that her

       physical, mental, and social growth is permanently impaired before terminating

       the parent-child relationship.’” In re G.F., 135 N.E.3d 654, 661 (Ind. Ct. App.

       2019) (quoting In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002)).


[17]   The evidence below clearly established that, during the CHINS proceedings,

       Mother periodically tested positive for amphetamine, methamphetamine,

       cocaine, and alcohol. 8 Mother was repeatedly incarcerated, apparently as a

       result of driving while being a habitual traffic offender. That combination of

       being incarcerated and her inability to legally drive when not incarcerated made

       it difficult for Mother to meet court-ordered requirements, as well as to

       simultaneously earn the income necessary to provide a stable living




       then into 2020,” Mother asks us to reweigh evidence. Appellant’s Br. p. 22. We cannot. See, e.g., D.D., 804
       N.E.2d at 264; see also Appellant’s Br. p. 24.
       8
        Though we do note that, of the sixty drug screens administered to Mother over a four-year period,
       commendably, fifty-four were negative.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020              Page 10 of 14
       environment for the Children. 9 Mother claims that this evidence was somehow

       insufficient to establish a threat to the well-being of the Children under Indiana

       Code Section 31-35-2-4. But Mother’s arguments do not pertain to the

       sufficiency of the evidence. Rather, her arguments focus on how much weight

       was or should have been afforded to the evidence. Such arguments have no

       place in our review.


[18]   Mother was explicitly warned that inconsistent visitation was harmful to the

       Children and that, if she missed further visits, visitation could be cancelled

       entirely. Mother subsequently missed four visits. J.R. “has anxiety and

       tantrums and the more times his mother loops in and out of his life, the longer

       his periods of acting out; the acting out for this seven-year-old is bullying,

       aggression, soiling himself[,] and smearing feces.” Appellant’s App. Vol. II p.

       15. Both Children have indicated that they wish to continue to reside with their

       foster family.


[19]   The record regarding the Children’s psychological and behavioral struggles is

       substantial. As the juvenile court identified: “the children have never been able

       to stabilize because their mother has stopped and started visitation so many

       times over the history of the cases . . . .” Appellant’s App. Vol. II p. 14.




       9
        The record is replete with Mother’s excuses for tardiness and non-appearance, many of which appear to be
       variants on a theme relating to her job and the travel therefrom.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020            Page 11 of 14
       Mother was given many opportunities to rehabilitate herself and services to

       assist her. Mother was never able to maintain sobriety and achieve stability.


[20]   Invoking a prior holding of this Court, the juvenile court accurately summed up

       Mother’s efforts as follows: “‘Where there are only temporary improvements

       and the pattern of conduct shows no overall progress, the court might

       reasonably find that under the circumstances, the problematic situation will not

       improve.’” Appellant’s App. Vol. II p. 18 (quoting In re J.S., 906 N.E.2d 226,

       234 (Ind. Ct. App. 2009)); see also Appellant’s App. Vol. II pp. 17-18 (“[Mother]

       has made some progress throughout the nearly four years that her children have

       been under the supervision of DCS, but her children’s therapist expresses

       concern over the continued inconsistency demonstrated by mother. . . the

       children worry that mom will disappear and it is harming the children.”).


[21]   The record does not support Mother’s contention that the juvenile court “didn’t

       properly consider [Mother’s] attempts to be in the lives of the minor children

       during the periods of time of [Mother’s] incarceration.” Appellant’s Br. p. 28.

       The juvenile court’s thorough and detailed order demonstrates that, in its sound

       discretion, the juvenile court concluded that Mother was “unwilling to meet

       [her] parental responsibilities by failing to provide for the [Children’s]

       immediate and long-term needs.” K.T.K., 989 N.E.2d at 1230 (quoting D.D.,

       804 N.E.2d at 265). In the absence of clear error, we are neither required nor

       inclined to revisit the juvenile court’s conclusion that a continued parent-child

       relationship threatens the Children’s well-being. Mother had more than ample

       opportunity to correct her behavior during the four-year CHINS pendency.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020   Page 12 of 14
       Sufficient evidence exists to support the juvenile court’s finding that there was a

       “reasonable probability that the continuation of the parent-child relationship

       poses a threat to the well-being of the child.” See Ind. Code § 31-35-2-4(b)(2).


                                             B. Satisfactory Plan

[22]   Finally, Mother challenges the juvenile court’s finding that there is a

       satisfactory plan for the care and treatment of the Children. Indiana courts

       have held that for a plan to be “‘satisfactory’” for the purposes of the

       termination statute, it “‘need not be detailed, so long as it offers a general sense

       of the direction in which the child will be going after the parent-child

       relationship is terminated.’” In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App.

       2014) (quoting Lang v. Starke Cnty. Office of Family and Children, 861 N.E.2d 366,

       375 (Ind. Ct. App. 2007), trans. denied), trans. denied.


[23]   DCS is only required to offer a general sense of the plan for the Children after

       termination of Father’s and Mother’s parental rights. The juvenile court found

       that DCS has a satisfactory plan for the care and treatment of the Children:

       “The children have been placed in foster care with [Foster mother] since

       October 31, 2016, and [Foster mother] has expressed the intent to petition for

       adoption should parental rights be terminated.” Appellant’s App. Vol. II. p. 20;

       see, e.g., Lang, 861 N.E.2d at 375 (holding that adoption and independent living

       are satisfactory plans). The juvenile court’s finding that DCS had a satisfactory

       plan is not clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020   Page 13 of 14
                                                 Conclusion
[24]   The juvenile court’s termination of Mother’s parental rights was not clearly

       erroneous. We affirm.


[25]   Affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-1307 | December 30, 2020   Page 14 of 14

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