In the Matter of the Termination of Parent-Child Relationship of J.C.G. (Minor Child), and L.A.M. (Mother) v. The Indiana Department of Child Services (NFP)
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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. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: DANIELLE L. FLORA Fort Wayne, Indiana GREGORY F. ZOELLER Attorney General of Indiana Indianapolis, Indiana ROBERT J. HENKE Deputy Attorney General Indianapolis, Indiana CHRISTINA D. PACE Deputy Attorney General Indianapolis, Indiana Jun 12 2014, 10:34 am IN THE COURT OF APPEALS OF INDIANA IN THE MATTER OF THE TERMINATION OF PARENT-CHILD RELATIONSHIP OF J.C.G. (Minor Child), and L.A.M. (Mother) Appellant, vs. THE INDIANA DEPARTMENT OF CHILD SERVICES, Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 02A03-1312-JT-466 APPEAL FROM THE ALLEN SUPERIOR COURT FAMILY RELATIONS DIVISION The Honorable Charles F. Pratt, Judge The Honorable Lori K. Morgan, Magistrate Cause No. 02D08-1212-JT-155 June 12, 2014 MEMORANDUM DECISION NOT FOR PUBLICATION MATHIAS, Judge L.M s ( Mot her s ) p arental rights to J .G., one of her f our c hildren, were terminated b y the All en S uperior Court Family Relati ons Divi sion. Mother ap peals, arguing that the evide nce was insuf ficient to support the tria l court s ter mination of her parental rights. We affirm. Facts and Procedural History Mother has four children, but only J.G., born March 12, 2010, is the subject of the instant ter mination pr oceeding. 1 On Jul y 22, 2010, when J .G. w as f our months old, police cal led t he De partment of Ch ild Services ( DC S ) to tak e c ustody of J.G. after Mother was arreste d o n char ges of battery, a Class A misdemeanor, batter y b y bodily waste, a Class D f elony, and res isting law en forcement, a Clas s A misdemeanor. DCS initiated the underlying Child in Need of Services ( CHINS ) proceedings and removed J.G., that same day, after determining the condition of Mother s home to be inappropriate. The CHINS allegations included Mother s current unemployment and unstable housing, her almost daily use of marijuana, dirty laundry throughout the hous e, dirty dishes i n the kitchen, t rash strewn t hroughout the yard and dog f eces i n the bas ement, as well as t he One of her children is in the custody of her first husband, the other two are in the custody of her fiancé and his a unt. J.G. s b iological f ather was p ersonally ser ved, but h e stopped a ttending f amily pl anning meetings on December 28, 2012, and stopped visiting J.G. during the same month. He did not attend the termination hearing personally, but was represented by Attorney Timothy Stucky. J.G.'s biological father does not participate in the present appeal. 1 2 allegations for which she was arrested. On August 23, 2010, at the initial hearing, Mother admitted that she was currently unemployed; that her residence was unkempt with dirty clothing scattered throughout the house, with dirty dishes in th e kitchen sink and trash scattered through the yard; that she smoked marijuana five times per week and began using marijuana at age eleven; that she engaged in a do mestic di spute in f ront of he r home, while J.G. wa s at the neighbor s house; that she was arrested f or batter y, b attery by bodil y waste and resisting la w enforcement; th at sinc e being incarcerated o n Jul y, 2 2, 2010, she had been unable to provide necessary care and supervision to J.G.; that she could benefit from services she is unlikely to receive wit hout interventi on of th e court; and that prior to the prelim inary inquiry report, she did not have indepe ndent housing for J.G. See Ex. Vol., DCS Exs. 4 & 5. Due to Mother s admissions, the trial court adjudicated J.G. a CHINS and ordered Mother to participate in reunif ication ser vices. Shortly thereafter, o n Septe mber 13 , 2010, Mother was convicted of battery and battery by bodily waste, and was sentenced to one year of incarceration for each count, to run concurrently, but the trial court suspended the sentences to active probation for one-and-a-half years. Four months later, by the review hearing on January 24, 2011, Mother had f ailed to enroll in services a nd progra ms requir ed b y the dis posal decree . In late Januar y of 2011, Mother teste d positive f or cocaine, a violation of her probation, and on April 7, 2011 Mot her was sentenced to se rve one year and 18 3 da ys i n count y jail . Af ter approximately one month of incarceration, Mother was corrections program and then six months of house arrest. 3 release d to a co mmunity At the Jul y 6, 2011 p ermanency he aring, th e trial court f ound tha t Mother was enrolled and participating in the required services and programs, but had not completed them. The c ourt orde red J.G. to re main in relative care with the per manency plan to remain reunif ication, but ordered a concur rent per manency pl an of adoption and termination of paternal rights. Four months later, on November 21, 2011, and after completing her prior sentence, Mother was ch arged with disorde rly condu ct and public int oxication, both Cl ass B misdemeanors. B y t he Dece mber 12, 201 1 permanency hearing, Mother h ad f ailed to maintain c ontact with DCS, had eng aged i n cri minal disor derly conduct, h ad test ed positive f or s ynthetic marijuana and had n ot demonstrated an ab ility to be nefit f rom services. On April 2, 2012, Mother plea ded guilt y to Class B misdemeanor disord erly conduct and was sentenced to a 180-day sentence, which was suspended to probation. At the Ma y 14, 2012 review hearing, th e trial court found that Mother was participating in requir ed service s, co nsistently visiting w ith J. G. a nd had not recently tested positive f or illegal substances. The c ourt m aintained an int erim plan of relative care because Mother had not completed required services, but she was allowed overnight visitation. However , af ter Mother failed to appear f or drug scree nings and ref used to cooperate w ith an ongoing inve stigation, t hese over night vis itation rights were later revoked. On Jul y 3 1, 2012 , whi le still on probation f or disorderl y conduct, Mother, dr ove while into xicated, was in volved in a c ar acc ident and f led the sce ne. On February 1, 2013, Mother ple aded guilty to f our counts o f failure to stop af ter an accident causin g 4 injury or death, three counts as Class A misdemeanors and one count as a Class B felony; and also plea ded guilt y to one coun t of operating a vehic le while intoxicated c ausing serious bo dily har m, a Class D f elony. S he was sentenc ed to con current ter ms of one year incarceration for each Class A Misdemeanor; sixteen years incarceration with eigh t years suspen ded and four years prob ation for the Class B f elony; a nd three years incarceration for the Class D felony. After all of these de velopments in Mot her s lif e, a t the October 18, 2012 permanency hearing, the court ordered J.G. placed in licensed foster care and changed the permanency pla n to adoption and ter mination of parental rights. At the August , 2013 termination heari ng, Mother had f ailed to take adva ntage of thr ee years of intensi ve services, had made her own, additional poor choices as to her personal conduct and still had no stable e mployment or housing. Additionally, Mother c laimed addict ion to alcohol is not my issue. Tr. p. 82. Mother s latest incarceration had begun February 8, 2013. Her expected release date is January of 2017; however this release date could be as early as Jul y 2015 if Mother takes advanta ge of educational opp ortunities in prison. Guardian Ad Lit em, Brian V ian, who h ad been appointed af ter t he underl ying 2 010 battery i ncident, testified at the term ination hearing, I believ e strongl y that the Department s peti tion t o ter minate par ental ri ghts wit h a p lan of ad option is in the be st interests of [J.G.] Tr. p. 170. After taking the matter under advi sement, on Nove mber 1, 201 3, the trial cour t issued its order terminating Mother s parental rights. Mother now appeals this order. Discussion and Decision 5 When we review a termination of parental rights, we will not reweigh the evidence or judge the credibilit y of the witnesses. In re P.P.,804 N.E.2 d 258, 265 (Ind. Ct. App. 2004), trans. den ied. Instead, we consi der on ly the evi dence a nd re asonable i nferences that are most favorable to the judg ment. Id. Moreover, in def erence to the trial court s unique position to assess the evidence, we will set aside the co urt 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. Here, in ter minating Mother s paren tal rig hts, the trial court en factual f indings and conclusions. tered specif ic When a trial court s judg ment contain s specif ic findings of f act and conclusions there on, we appl y a t wo-tiered standard of review . Bester v . La ke Cnt y. Office of Fam ily & Children, 839 N.E.2d 1 43, 147 (In d. 2005). First, we deter mine whether the evide nce supports the f determine whe ther th e f indings support the judg ment. indings, and second, we Id. Findings are clea rly erroneous o nly whe n t he record con tains n o facts to support the m either directl y or b y inference. Quillen v . Quillen , 671 N.E.2 d 98, 102 (Ind. 1996). If the evidence and inferences support the trial court s decision, we must affirm. L.S., 717 N.E.2d at 208. The trad itional right of parents to esta blish a ho me a nd ra ise t heir childr en is protected by the Fourteenth Amendment of the United State s Constitution. In re M. B., 666 N. E.2d 73, 76 (I nd. Ct. App. 19 96), trans. den ied. However, a trial court must subordinate the in terests of the parents to those of the chi ld when evalu ating t he circumstances surroun ding a termination. In the Matter of Termination of the P arent Child Relationship of K.S., 750 N.E.2d 832, 837 (Ind. Ct. A pp. 2001). Termination of a 6 parent-child relationship is proper where a chi ld s emotional and physical development is threatened. Id. Although the right to raise one s own c hild sho uld not be ter minated solely because th ere i s a better ho me avail able f or the child, parental rights terminated when a parent is unable or unwillin g to meet his or may be her pare ntal responsibilities. Id. at 836. Before parental rights may be involuntarily terminated in Indiana, the State is required to allege and prove, among other things: (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 parentchild 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. Ind. Code § 31-35-2-4(b)(2)(B)-(D). The State s burden of proof for establishing these allegations in termination cases is one of clear and c onvincing evide nce. In re G. Y., 904 N.E.2 d 1257, 12 60 1261 (Ind. 2009) (q uoting I nd. Code § 31 37 14 2 (2008)). Cle ar and convincing e vidence need not establish that the continued custody of the parents is wholly inadequate for the child s very survival. Bester, 839 N.E.2d at 148. Rather, it is sufficient to show by clear and convinc ing evid ence that the c hild s emotional development and p hysical development are put at risk by the parent s custody. Id. Finally, if the court f inds that the allegations in a pet ition described in secti on 4 of this chapter are true, the court shall 7 terminate the parent-child relationship. Ind. Code § 31-35-2-8(a). Indiana C ode § 31 -35-2-4(b)(2)(B) requ ires the S tate to es tablish, by clear and convincing evi dence, only one of the three require ments of subsection (b)(2)(B) . The trial cour t f ound both that (i) there is a reas onable p robability th at the c onditions t hat resulted in th e chil d s re moval and the reas ons f or the place ment outside the parent s home will not be remedied, and (ii) th at continuation of parent/child relationship poses a threat to the well-being of the chil d. Appellant s A pp. p. 8. On appeal, Mother onl y argues that t he DC S f ailed to present clear an d convincing evi dence that the conditions that resu lted in J. G. s removal have not been re medied a nd f ails t o challen ge t he tria l court s finding that the continuation of parent/child relationship poses a threat to the wellbeing of J.G. Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record. State v. Smith, 822 N.E.2d 193 202-03 (Ind. Ct. App. 2005). Accordingly, on its face, Mother s appeal fails. Moreover, we conc lude that t he recor d su pports the trial c ourt s j udgment that there is a r easonable probability that the conditions that resulted in th e J.G. s removal or the reasons for placement outside the home of the parents will not be remedied. It is true, as Mother argues, that short-term incarceration should not be the only reason for a court to ter minate pare ntal r ights. See R.Y. v. Ind . Dep t of Child S ervs., 904 N.E.2d 1257 (2009). However, d uring M other s short -term incar ceration pe riods, per iods that included p robation, co mmunity corrections a nd house arrest, Mother f ailed to benef it from any of the ser vices she received. Des pite subs tance a buse counseling, Mother 8 abused c ocaine, s ynthetic marijuana a nd al cohol. Furthermore, Mother ref used t o acknowledge her subst ance abuse issue s. See tr. p. 82. And af ter all of the intensive, corrective and re habilitative se rvices Mot her receive d duri ng this peri od, M other continued to show disrespect for the law and safety of others by operating a vehicle while intoxicated and fleeing the scene of the accident rather than attempting to assist those she had injured. Due to the per manent effect of termination, the trial court . . . must evaluate the parent s habitua l patt erns of conduct to determine whet her th ere is a substantial probability of future neglect or deprivation of the child. In re L.S., D.S. and A.S., 717 N.E.2d 204 , 209 (In d. Ct. App. 19 99), trans. denied . When making its dete rmination, the trial court ca n rea sonably con sider the s ervices of fered . . . to the parent and th e parent s respo nse to th ose services. In re A .A.C.,682 N .E.2d 5 42, 544 (Ind. Ct. App. 1997). Mother has ha d ever y chance to pul l her lif e together ove r the past three years, and at this point, a ware of Mother s habitual substance abuse and di srespect for the law, the State must protect J.G. Moreover, the rec ord supports th e trial court s unco ntested j udgment tha t continuation of parent/ child relat ionship pose s a threa t to the w ell-being of J.G. In t he Spring of 2012, Mother had shown enough improvement for DCS to grant her overnight visitation with J.G .; h owever this w as short lived. Within months, Mother f ailed to submit to th ree conse cutive drug screenings, and f ailed to cooper ate with an on going investigation, which re sulted in these overni ght visits being place d on hold. Over the course of three years, Mother has t ested positive f or drug s, has habituall y f ailed to 9 provide a s afe, stable h ome for her children and has not demonstrated any willingness to live a law -abiding lif e. All of t his evidence supports th e trial cou rt s conclusi on tha t continuation of the parent/child relationship poses a threat to the well being of J.G. 2 Conclusion We will reverse a termination of parental rights only upon a showing of clear error, that is, that which lea ve us with a def inite a nd f irm conviction tha t a m istake has bee n made. See In re L.B., 889 N.E. 326, 342 (Ind. Ct. App. 2008). We find no such error i n this case. Accordingly, we affirm the trial court s judgment terminating Mother s parental rights to J.G. Affirmed. FRIEDLANDER, J., and PYLE, J., concur. 2 Mother did not challenge the court s finding that the termination of her parental rights was in J.G.'s best interest. The evidence discussed above and the Guardian Ad Litem s recommendation that termination is in the best interest of the child is sufficient to support the court's termination of parental rights. See In re T.F., 743 N.E.2d 766, 776 (Ind. Ct. App. 2001); see also tr. p. 170. 10
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