RILEY, Judge.
Appellant-Respondent, T.E. (Mother), appeals the trial court's Order terminating her parental rights to her minor children, R.R., M.R., T.L., and M.P.
We affirm.
Mother raises one issue for our review, which we restate as follows: Whether the evidence was sufficient to support the termination of her parental rights.
Mother is the biological parent of the following four minor children: M.P., born on July 23, 1997; T.L., born on September 1, 1998; R.R., born on February 20, 2000; and M.R., born on January 11, 2002.
On February 18, 2009, the DCS received another report, alleging that R.R. and M.P. were not receiving their behavioral medications and that Mother was leaving the children with her parents again. On February 27, 2009, the DCS filed a petition for an emergency custody, which the trial court granted. On March 3, 2009, a hearing was held on the petition. The trial court found that the children were children in need of services (CHINS). The trial court allowed all four children to stay with Mother under the condition that she not leave the children alone with her parents again, give the children their behavioral medication, and ensure that the children attend school on a regular basis.
Two days later, on March 5, 2009, DCS received yet another report that Mother had left the children with her parents. The children were removed and placed in foster care. On March 9, 2009, the DCS filed a petition alleging that the children were CHINS. An initial hearing was held on March 17, 2009, and Mother admitted the allegations in the petition. At the dispositional hearing on April 7, 2009, the trial court ordered that Mother have supervised visitation with the children; attend parenting classes and family therapy; complete drug assessment; cooperate with random drug screens; pay child support; provide proof of employment search to DCS; and refrain from discussing the reunification date with the children. Mother was also ordered to complete a psychological parenting assessment, which recommended that Mother continue with medication management, participate in individual and family counseling, maintain supervised visitation, and participate in ongoing home-based case management. The assessment also recommended that Mother's husband participate in a psychosexual examination and a sexual history disclosure polygraph based on his sex offender history.
During the course of DCS's involvement, the children remained in foster care while Mother failed to comply with services. For example, Mother missed several supervised visitations with her children. When she attended the supervised visitations, Mother discussed inappropriate topics with the children and appeared to be unable to bond with the children. Mother also missed several therapy appointments, and while her attendance did improve, it was slow. In addition, Mother failed to alert DCS when her boyfriend, a convicted sexual offender, moved into her home and when she eventually married him.
DCS was also concerned about Mother's drug use. At one point while the children were in foster care, Mother gave birth to another child. DCS became involved with that child as well because there were reports that Mother and Brittany were using drugs in the home. In fact, that child tested positive for methamphetamine. Prior to this child's birth, Mother had completed an addictions assessment but was not forthcoming with her drug use and thus, was not required to participate in any substance abuse treatment. After the infant was removed from the home, it was recommended that Mother participate in an intensive outpatient substance program and then complete a follow-up program. Mother initially attended the sessions, however, she started missing sessions and also tested positive for methamphetamine and amphetamine.
Based on Mother's failure to comply with services, the DCS filed a petition to terminate Mother's parental rights on June 23, 2010. The trial court conducted a fact-finding hearing on the petition on December 6, 2010. At the time of the termination hearing, Mother was in work release due to nonpayment of child support and theft. On December 13, 2010, the trial court made findings of fact and conclusions of law and granted DCS's petition for termination.
Mother now appeals. Additional facts will be provided as necessary.
In reviewing termination proceedings on appeal, this court will not reweigh the evidence nor assess the credibility of the witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We consider only the evidence that supports the trial court's decision and reasonable inferences drawn therefrom. Id. Where, as here, the trial court enters findings of fact and conclusions of law in its termination of parental rights, our standard of review is two-tiered. Id. First, we determine whether the evidence supports the findings, and second, whether the findings support the conclusions of law. Id.
In deference to the trial court's unique position to assess the evidence, we set aside the trial court's findings and judgment terminating a parent-child relationship only if they are clearly erroneous. Id. A finding of fact is clearly erroneous when there are no facts or inferences drawn therefrom to support it. Id. A judgment is clearly erroneous only if the conclusions of law drawn by the trial court are not supported by its findings of fact or the conclusions of law do not support the judgment. Id. We review conclusions of law de novo. Bowyer v. Ind. Dep't of Natural Res., 882 N.E.2d 745, 761 (Ind. Ct. App. 2008).
The Fourteenth Amendment of the United States Constitution protects the traditional right of parents to establish a home and raise their children. Bester v. Lake Cnty. Office of Family and Children, 839 N.E.2d 143, 147 (Ind. 2005). Our supreme court has acknowledged that the parent-child relationship is "one of the most valued relationships in our culture." Id. (quoting Neal v. DeKalb County Div. of Family and Children, 796 N.E.2d 280, 285 (Ind. 2003)). That being said, parental interests are not absolute and must be subordinated to the child's interest in determining the proper disposition of a petition to terminate parental rights. Id.
To effect the involuntary termination of a parent-child relationship, the State must present clear and convincing evidence establishing that:
I.C. § 31-35-2-4(b)(2).
Mother argues that there is insufficient evidence to prove that the conditions that resulted in the children's removal or reasons for placement outside the home of the parents will not be remedied; that the continuation of the relationship poses a threat to the well-being of the children; that termination is in the best interest of the children; and the plan for adoption is satisfactory.
We begin our review by observing that I.C. § 31-35-2-4(b)(2)(B) is written so that the DCS need establish only one of the three requirements of subsection (b)(2)(B). See I.C. § 313-5-2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we shall only consider whether clear and convincing evidence supports the trial court's findings with respect that there is reasonable probability the conditions resulting in the children's removal or continued placement outside the family home will be remedied. See I.C. § 31-35-24-(b)(2)(B)(i).
Mother argues that DCS failed to prove by clear and convincing evidence that the conditions that resulted in the children's removal or the reasons for placement outside the home will not be remedied. Specifically, she argues that she has made improvements in her life by being more honest and responsible. Additionally, she argues that once she is released from work release, the conditions that existed at the time of removal will not be present.
In determining whether a reasonable probability exists that the conditions justifying a child's removal and continued placement outside the home will not be remedied, the trial court must judge the parent's fitness to care for the children at the time of the termination hearing, taking into consideration evidence of changed conditions. In re D.J., 755 N.E.2d 679, 684 (Ind. Ct. App. 2001). A parent's habitual patterns of conduct must also be evaluated to determine the probability of future negative behavior. Id. The trial court may properly consider the services offered by DCS, and the parent's response to those services, as evidence of whether the conditions that resulted in the child's removal from the home will or will not be remedied. R.W., Sr. v. Marion Cnty. Dep't of Child Serv., 892 N.E.2d 239, 248 (Ind. Ct. App. 2008). The DCS need not rule out all possibilities of change; rather, it must establish that there is a reasonable possibility that the parent's behavior will not change. In re B.J., 879 N.E.2d 7, 18-9 (Ind. Ct. App. 2008), trans. denied.
Here, in finding that there is a reasonable probability that the conditions resulting in the children's removal and continued placement outside Mother's care will not be remedied, the trial court found the following:
(Appellant's App. p. 30).
Our review of the record reveals that this finding is supported by the evidence that the conditions will not be remedied because Mother has not demonstrated that she can provide proper care and supervision the children need. During the termination hearing, family case manager Diana Hampton (Hampton) testified that when DCS was initially called to investigate, R.R., M.R., and M.P. had been left in the care of their grandparents, who have medical conditions, and were found playing with knives outside at night. After this incident, Mother signed a safety plan, where she agreed that she would not leave the children with her parents because they had their own medical conditions and are unable to control the children and their behavioral problems. However, Mother did not follow through with the plan and the children were left with the grandparents shortly thereafter and another CHINS petition was filed.
During the time the children were in foster care, Mother was in and out of jail. In fact, at the time of the termination hearing, Mother was incarcerated due to nonpayment of child support and theft and was in the work release program with the earliest release date being in March of 2012. Based on all of these facts, Hampton testified that in her opinion, "the problem that we had from the initial [DCS involvemenet] to now has not improved substantially enough to provide a safe environment for [the] children[.]" (Transcript p. 347). Currently, the children are in foster care where, according to Hampton, "they are more than welcome to stay." (Tr. p. 347). The children are thriving in foster care because they have stability—something Mother has not provided in the past and cannot currently provide.
It is clear that Mother's circumstances have not improved, but in fact have regressed to a worse state as she continued to disobey the law. Despite Mother's argument that once she is released from work release the conditions that resulted in her children's removal will be remedied, the trial court must judge the parent's fitness to care for her children at the time of the termination hearing. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001). Mother's incarceration at the time of the termination hearing, with her earliest release date of March 2012, coupled with her non-compliance with services, is strong evidence of Mother's inability to remedy the conditions that resulted in the children's removal and/or continued placement outside her care, as well as her inability to provide the children with the safe and stable home environment they need within a meaningful time frame. See Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied. Furthermore, her argument that she has made improvements to her life and is more honest and responsible is an invitation to reweigh the evidence, which we may not do. In re D.D., 804 N.E.2d 258, 623 (Ind. Ct. App. 2004), trans. denied. As such, the DCS has demonstrated by clear and convincing evidence that the conditions that resulted in the children's removal will not be remedied.
Next, we consider Mother's contention that the DCS failed to present clear and convincing evidence that termination of her parental rights is in the children's best interest. In determining what is in the best interests of a child, the trial court is required to look beyond the factors identified by the DCS and look to the totality of the evidence. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In so doing, the trial court must subordinate the interests of the parent to those of the child. Id. The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Id. Moreover, we have previously held that the recommendations of both the case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the child's best interests. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000). A parent's historical inability to provide a suitable environment along with the parent's current inability to do the same supports a finding that termination of parental rights is in the best interest of the children. Lang v. Starke Cnty. Office of Family and Children, 861 N.E.2d 366, 373 (Ind. Ct. App. 2007).
The trial court found that termination was in the children's best interest for the following reasons:
(Appellant's App. pp. 30-31).
The evidence supports these findings. As discussed above, the family therapist, the DCS case workers, and the CASAs testified that termination of Mother's parental rights would be in the children's best interest. For example, Kathy Stull (Stull), the CASA, testified that termination is in their best interest because "these children deserve a safe, secure, place where they will have consistency in their lives, where they won't have to worry...whether someone is going to be there for them...they need someplace where they can feel safe, they will be loved, and that they will be well cared for." (Tr. p. 367).
Furthermore, the children do not wish to return to Mother's care because of her broken promises and her continued drug use. Renee Paige (Paige), the family therapist, testified that the children have built up so much anger towards their Mother because they felt like "[she] liked her lifestyle more than wanting to do what was being requested of her to do, and they felt like they were taking second place with [her]." (Tr. p. 228). Since Mother's incarceration, two of the children explicitly stated that they did not wish to visit their mother while the other two did not request to see her.
Additionally, Paige testified that when she first met with the children, three of them had behavior issues; they were disruptive and were not taking their medication consistently. Since they have been in foster care, the children have improved and"[t]here [is] not nearly the amount the anger and school problems with them." (Tr. p. 228). The children's foster mother, Rebecca Hurley, also testified that the children "are doing remarkably well" in and out of school because they have the structured lives that they so desperately needed while they were in the care of their Mother. (Tr. p. 305). The children cannot be forced to put their lives on hold while they wait for their Mother to clean up her own life so she can provide the children with the care they need.
Ultimately, the CASA, Hampton, Paige, and Hurley all agree that termination is in the children's best interest. Based on the totality of the evidence, including how well the children are doing, the fact that the children do not want to be with Mother, and the fact that Mother is unable to provide the children with a safe and stable home environment, coupled with the testimony of the CASA, family case manager, therapist and foster mother, we conclude that termination of Mother's parental rights is in the children's best interest.
Finally, we consider whether there is sufficient evidence to support the trial court's determination that DCS has a satisfactory plan for the future care and control of the children. Mother argues that the DCS failed to prove adoption is a satisfactory plan "[b]ecause the children's feelings about [Mother] were not presented by the children, because [Mother] had made a good faith effort to improve herself while in Work Release, and because being incarcerated is not enough in itself to warrant adoption...." (Appellant's Br. p. 14).
Indiana Code section 31-35-2-4(b)(2)(D) provides that before a trial court may terminate a parent-child relationship, the court must find that there is a satisfactory plan for the care and treatment of the child. It is well-established, however, that this plan 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 D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004), trans. denied.
In this case, the evidence shows that Mother is in no position to care for the children. It is undisputed that Mother cannot provide a stable environment for the children because she is incarcerated. The children have been in the system long enough and have been "crying out for some stability in their life." (Tr. p. 337). Moving the children back with Mother after a year of living in a stable environment in which they are thriving would be detrimental.
Mother's incarceration was not, however, the only reason for the permanency plan. Hampton testified that Mother had been found to be in contempt for failing to cooperate with DCS, such as "missing multiple visits with her children, making promises to the children during the visits, lying to the children and blaming others, refusing to attend individual therapy as scheduled, failing to provide proof of efforts to obtain employment, and submitting false documents to DCS." (Tr. p. 335). Clearly, Mother has demonstrated that she is unwilling to improve her life so she can be a better parent.
Finally, Mother argues that the children were never directly asked their wishes. She cites to Indiana Code section 31-17-2-9 which provides that "[a] court may interview the child in chambers to ascertain the child's wishes." However, the trial court was not required to interview the children to determine whether they wanted to live with Mother, as the statute provides that the court "may" interview the child, not that it "must." Ultimately, the adoption plan presented by the DCS provides the trial court with a general sense of the direction of the children's future care and treatment and is therefore satisfactory.
Based on the foregoing, we conclude that the evidence was sufficient to support the termination of Mother's parental rights.
Affirmed.
DARDEN, J., and BARNES, J., concur.
