Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
BROWN, Judge.
L.J. ("Mother") appeals the involuntary termination of her parental rights with respect to her daughters, A.J. and N.D. Mother raises two issues which we consolidate and restate as whether the evidence is sufficient to support the termination of her parental rights. We affirm.
On January 6, 2002, A.J. was born to Mother and B.D. ("Father").
In April 2013, Mother was living with J.M., the father of three of her other children, and eight of her children in a residence on Goodlet Street. Mother was arrested for disorderly conduct and served nine days in jail. That month, DCS filed a petition alleging that A.J., N.D., and five of Mother's other children were children in need of services ("CHINS") because Mother failed to provide a safe living environment with necessary supervision, she was recently arrested and incarcerated leaving the children without an appropriate caregiver, there were allegations that one of Mother's children was "perpetrating sexually on his siblings," and A.J. recently obtained a grease burn due to lack of supervision. Petitioner's Exhibit 1.
In June 2013, the parties agreed to an informal adjustment under which Mother would participate in home based therapy and case management, substance abuse treatment, domestic violence education, and submit to random urine drug screens. Other than the domestic violence education, Mother was actively involved in services until January 2014, but completed only her substance abuse treatment as a part of the informal adjustment. On December 11, 2013, DCS requested an extension of the informal adjustment because of Mother's housing instability.
On January 3, 2014, Mother called Family Case Manager Annaliese Gibbs
On January 9, 2014, DCS filed a verified petition alleging that A.J. and N.D. were CHINS.
That same day, the court held a hearing at which Mother appeared, and the court authorized the children's continued removal. Mother signed a document titled "Respondent's Admission to Amended Petition, Paragraph 4(a)," stating that the children are CHINS because Mother requires assistance providing the basic necessities for the children such as housing with functioning utilities, and it also states: "services: Home Based, Domestic Violence Intake, ensure [N.D.] remain[s] in therapy, Substance Abuse Assessment." Petitioner's Exhibit 16.
On February 12, 2014, the court found the children to be CHINS, held a dispositional hearing, and entered a dispositional order and a parental participation order.
In early February, the service providers and DCS had concerns with Mother's struggle in maintaining open communication and in fully participating in services. DCS attempted to hold a child and family team meeting on February 19th to discuss what barriers Mother may have had towards progressing in her treatment, but Mother did not attend the meeting, and DCS subsequently filed an affidavit to suspend visitation in February 2014. In March 2014, the court suspended Mother's visitation.
In March 2014, Mother stated to FCM Gibbs that she had been in Gary, Indiana, for a couple of weeks but had returned to Indianapolis and hoped to re-engage in services and find stable housing and employment. During a period of time, neither DCS nor the service providers were able to contact Mother.
After a couple of months, DCS determined that Mother was back in Gary, and Mother indicated that she wanted to stay in Gary and requested to transfer her services. In May 2014, FCM Gibbs re-referred services to Mother in Gary for home based therapy and case management, a substance abuse assessment and recommended treatment, domestic violence education, and random drug screens.
In August 2014, FCM Gibbs transferred the case to Family Case Manager Elizabeth Plew ("FCM Plew") who had difficulty reaching Mother at the number she was provided. FCM Plew gave Mother her phone number, and Mother sent text messages to FCM Plew "usually just prior to Court . . . or just after Court asking [her] what happened at Court if she didn't attend." Transcript at 110. There was a period of several months where FCM Plew was unable to reach Mother.
In January 2015, Mother told FCM Plew that she would be moving back to Indianapolis and asked to start visiting A.J. and N.D. Mother did not have an address she could give FCM Plew or a stable plan for housing or employment. To FCM Plew's knowledge, Mother did not move back to Indianapolis.
On January 7, 2015, the court entered an order following a periodic review hearing finding that Mother moved to Gary and was participating in some services, including drug screens which had been negative, but was not participating in substance abuse treatment. The court noted that Mother reported she would be moving back to Indianapolis in February.
On June 5, 2015, DCS filed a verified petition for the involuntary termination of the parent-child relationship between Mother and A.J. and N.D. On January 28, 2016, the court held an evidentiary hearing at which Mother appeared telephonically. She testified that she had nine children and that none of them lived with her at that time, and that J.M. was physically abusing her in front of the children in the Bellview residence. Mother testified that back in January 2014, she took her children to the foster home to "get them to safety" and away from J.M. Id. at 43. She stated that she moved to Gary because she did not feel safe anymore.
Mother testified that the water had been shut off to her residence on Belleview but that she had it turned back on and that the utilities including the lights and gas worked. She stated that she did not have electricity for two hours, that [J.M.] paid the bill and the electricity was back on in twenty minutes, and that she moved into her own place on July 1, 2015.
When asked if she just stopped participating in services, Mother answered: "The services, the services, they've been stopped participating with me. They were only going to spend thirty minutes with me and I probably felt like I probably need a hour, hour and a half so." Id. at 20. She testified that she did not contact FCM Gibbs when she did not think she was getting services that she needed, and that she received a phone number but no one answered when she called or responded to her text messages. She also stated that she tried to call FCM Gibbs's supervisor but no one answered and that she stopped trying to contact DCS around February 2015.
Mother testified that she works at a soul food restaurant Sundays through Fridays from 6:00 a.m. to 5:00 p.m. and that she is paid every day "under the table." Id. at 36. She stated that she would like her children to come home because she is stable and working, had not been arrested, and there had been no domestic violence in the home.
Mother testified that she had not seen A.J. or N.D. for over two years, that she had not been involved in services for about eleven months, and that she did not talk to FCM Plew about initiating visits again with A.J. and N.D. because FCM Plew never wanted to answer or respond to her messages or calls. When asked why she did not complete any services in Gary, Mother answered:
Id. at 34.
According to the testimony of FCM Gibbs, who was assigned the case between June 2013 and August 2014, there were multiple housing transitions throughout the first six months including some periods of homelessness in August due to an eviction from Mother's first home. Of the services Mother agreed to, she completed only her substance abuse treatment, and FCM Gibbs subsequently referred her twice for a substance abuse assessment and treatment based upon her admission to alcohol use. FCM Gibbs also referred Mother twice to domestic violence treatment after her initial referral, but she did not complete those services while FCM Gibbs had the case.
FCM Plew testified that the last time Mother worked with any service providers was January 2015, that Mother never gave her any documentation that she had stable housing or proof of a stable income, and that DCS had concerns with Mother's pattern of instability in housing and employment, her ability to provide for the children, the history of domestic violence and Mother's failure to complete domestic violence treatment, and Mother's history of substance abuse and failure to successfully complete treatment. She testified that the conditions that resulted in the removal of A.J. and N.D. had not been remedied, that it was her belief that the continuation of the parent-child relationship posed a threat to the well-being of A.J. and N.D., and that termination was in the best interests of A.J. and N.D.
The guardian ad litem for A.J. and N.D., Marquia Washum ("GAL Washum"), testified that she reviewed the contents of the entire Child Advocates case file and reports from service providers, interviewed or contacted the case manager, foster parents, and previous guardian ad litem, and visited with A.J. and N.D. multiple times. She testified that A.J. and N.D. did not voice any desire to be placed in Mother's care and that both reported during several visits that they would like to be adopted by their foster parents. GAL Washum recommended the termination of Mother's parental rights because she had not fully and successfully engaged in services and the children had been out of her care for a significant amount of time. She testified that she believed that the plan of adoption was in the best interests of the children. When asked why Mother should not be given additional time to complete services, GAL Washum answered that the children had been out of Mother's care for a significant amount of time, there were concerns that the reasons for involvement had not been remedied, and the children had bonded to the foster parents and were excelling in that environment.
On February 2, 2016, the court entered an order terminating Mother's parental rights to A.J. and N.D. Specifically, the order states in part:
Appellant's Appendix at 24-26.
The issue is whether the evidence is sufficient to support the termination of Mother's parental rights. In order to terminate a parent-child relationship, DCS is required to allege and prove, among other things:
Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-child relationship. See Ind. Code § 31-35-2-8(a).
The State's burden of proof for establishing the allegations in termination cases "is one of `clear and convincing evidence.'" In re G.Y., 904 N.E.2d 1257, 1260-1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh'g denied. This is "a `heightened burden of proof' reflecting termination's `serious social consequences.'" In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y., 904 N.E.2d at 1260-1261, 1260 n.1). "But weighing the evidence under that heightened standard is the trial court's prerogative—in contrast to our well-settled, highly deferential standard of review." Id. "We do not reweigh the evidence or determine the credibility of witnesses, but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence." Id. (quoting Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). "We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment." Id.
"Reviewing whether the evidence `clearly and convincingly' supports the findings, or the findings `clearly and convincingly' support the judgment, is not a license to reweigh the evidence." Id. "[W]e do not independently determine whether that heightened standard is met, as we would under the `constitutional harmless error standard,' which requires the reviewing court itself to `be sufficiently confident to declare the error harmless beyond a reasonable doubt.'" Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967), reh'g denied). "Our review must `give "due regard" to the trial court's opportunity to judge the credibility of the witnesses firsthand,' and `not set aside [its] findings or judgment unless clearly erroneous.'" Id. (quoting K.T.K. v. Ind. Dep't of Child Servs., Dearborn Cnty. Office, 989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))).
We note that the involuntary termination statute is written in the disjunctive and requires proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we limit our review to whether DCS established that there was a reasonable probability that the conditions resulting in the removal or reasons for placement of A.J. and N.D. outside the home will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).
In determining whether the conditions that resulted in the children's removal will not be remedied, we engage in a two-step analysis. E.M., 4 N.E.3d at 642-643. 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. at 643. In the second step, the trial court must judge a parent's fitness as of the time of the termination proceeding, taking into consideration evidence of changed conditions, balancing a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination. Id. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that a parent's past behavior is the best predictor of her future behavior. Id. "The statute does not simply focus on the initial basis for a child's removal for purposes of determining whether a parent's rights should be terminated, but also those bases resulting in the continued placement outside the home." In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citation and internal quotation marks omitted). A court may properly consider evidence of a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. Id. A trial court can reasonably consider the services offered by DCS to the parent and the parent's response to those services. Id. Further, 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. Id.
Mother argues that she was a victim of domestic violence and took the initiative to remove herself and her children from the abuser, and that she went to Gary "to get away from this dangerous individual who is incarcerated for murder." Appellant's Brief at 14-15. She contends that there is no evidence that she needs any sort of program to avoid further domestic violence. As to her struggle with alcohol use, she posits that there is no evidence her use continued after the children's removal. Her position is that there was not clear and convincing evidence that her housing or employment created a danger to her children.
With respect to Mother's employment, Mother testified that she worked six days a week for the three months prior to the termination hearing, she did not provide any verification of employment to her case manager, and she was being paid "under the table." Transcript at 36. She also testified that her last prior employment was in 2011.
As for housing, Mother testified that she lived in a residence on Goodlet Street for six or seven months when DCS first became involved, moved to her sister's house and then to a place on Belleview, then went to live with her brother for a couple of weeks, then with her sister in Gary for six months, and then in Indianapolis with a man for three weeks before moving to Gary in July 2015 in a residence that was leased in her fiancé's name under a month-to-month lease.
As to the domestic violence education and substance abuse treatment, the record reveals that Mother agreed to participate in substance abuse treatment and domestic violence education as part of the informal adjustment. When asked if Mother participated in services during the time period from June 2013 until January 2014, FCM Gibbs stated that "besides from [sic] the domestic violence education, she was actively . . . involved in the other services up until the January date." Transcript at 91-92 (emphasis added). Mother completed her substance abuse treatment in September 2013 as part of the informal adjustment, but stated in January 2014 that she continued to struggle with alcohol use. While Mother was open about the abuse she was suffering, she did not complete domestic violence education. Her admission that the children were CHINS included a notation for services for domestic violence and substance abuse. In the February 12, 2014 parental participation order, the court ordered Mother to complete a substance abuse assessment and successfully complete all treatment recommendations, and complete a domestic violence intake or assessment and complete all recommended services. FCM Gibbs testified that Mother expressed ongoing concerns with respect to her relationship with J.M. and his harassment of her after she moved to Gary. FCM Plew testified that Mother did complete a substance abuse assessment and that she believed Mother completed a domestic violence assessment, but she did not complete treatment for either domestic violence or substance abuse. We cannot say that the trial court's finding that Mother has still not addressed the issues of domestic violence and alcohol abuse is clearly erroneous.
We also observe that Mother struggled with maintaining communication and participating in services, did not attend the child and family team meeting on February 19, 2014, stopped participating in services in Gary in February 2015, and did not complete any of the services provided in Gary. In addition to her other testimony, FCM Plew testified that the conditions that resulted in removal of A.J. and N.D. had not been remedied, and that termination was in the best interests of A.J. and N.D. GAL Washum also recommended the termination of Mother's parental rights because Mother had not fully and successfully engaged in services.
Based upon the court's findings and the record as set forth in part above, we conclude that clear and convincing evidence supports the trial court's determination that there was a reasonable probability that the conditions leading to the removal of A.J. and N.D. would not be remedied.
For the foregoing reasons, we conclude that the trial court's judgment terminating the parental rights of Mother is supported by clear and convincing evidence.
Affirmed.
Robb, J., and Mathias, J., concur.
