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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 APPELLANTS: JASON W. BENNETT Bennett Boehning & Clary LLP Lafayette, Indiana ATTORNEYS FOR APPELLEE: JAMES R. ROWINGS Indiana Department of Child Services Veedersburg, Indiana ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana

FILED
Dec 28 2010, 9:12 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF THE PARENT-CHILD RELATIONSHIPS OF A.P., K.P. and M.P. with K.G., Mother, and T.G., Father. K.G. and T.G., Appellants, vs. INDIANA DEPARTMENT OF CHILD SERVICES, FOUNTAIN COUNTY, Appellee. ) ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 23A04-1004-JT-334

APPEAL FROM THE FOUNTAIN CIRCUIT COURT The Honorable Susan Orr Henderson, Judge Cause Numbers 23C01-0910-JT-122; -JT-123; and -JT-124 December 28, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary K.G. ("Mother") and T.G. ("Father") appeal the Fountain Circuit Courts judgment terminating their parental rights to their children. We affirm. Issues Mother and Father challenge the sufficiency of the evidence supporting the trial courts judgment. In so doing, Mother and Father present the following issues for review: I. Whether clear and convincing evidence supports the trial courts determination that there is a reasonable probability the conditions resulting in the childrens removal and/or continued placement outside their care will not be remedied; and Whether clear and convincing evidence supports the trial courts determination that termination of the parent-child relationships is in the childrens best interests. Facts and Procedural History Mother and Father are married and the biological parents of A.P., born in September 2004 and K.P., born in December 2002. Mother is also the biological mother of M.P., born in January 1999.1 In July 2008, the Indiana Department of Child Services, Fountain County ("FCDCS"),2 received a report that Mother had dropped off all three children in a trailer park

II.

1

The biological father of M.P. is J.W. During the underlying proceedings, J.W. signed a consent form agreeing to voluntarily relinquish his parental rights to M.P. J.W. does not participate in this appeal.
2

In 2005, Mother and Father entered an Informal Adjustment with FCDCS following a substantiated report of life and health endangerment and lack of supervision. While Mother was incarcerated for a probation violation, Father went to work leaving then six-year-old M.P., two-year-old K.G., and infant A.P. home alone and unsupervised. The childrens maternal grandmother, who also suffers with substance abuse issues, was supposed to be assisting Father with the care of the children. Both parents participated in the Informal Adjustment. Mothers participation in these family preservation services was ultimately deemed unsuccessful,

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and instructed the crying children to walk to their grandmothers home. Mother had not asked the grandmothers to care for the children or told them she was bringing the children over for a visit. When the children arrived at the grandmothers home, both adults had been drinking and were in no condition to care for the children, so they called local law enforcement for assistance. At the time, Father was incarcerated. The local police notified FCDCS of the situation, and FCDCS case manager Brandy Roan ("Roan"), who had recently received a referral alleging Mother was "abusing drugs and/or alcohol," immediately went to the grandmothers home to render assistance. (Tr. 129.) After helping police officers calm the children and transport them to the police station, Roan went to Mothers home in Attica to continue her investigation. When Mother answered Roans knock at the door Mother "appeared kind of slurred and kind of not with it." Id. at 130. When Roan asked Mother where the children were, Mother initially stated they were taking naps but then told Roan the children were "at a friends house or maybe with her mom or grandmother." Id. Law enforcement officers arrived shortly thereafter and arrested Mother, for violating the terms of her probation based on Mothers admission to the officers that she had consumed alcohol earlier that day.3 FCDCS filed petitions under separate cause numbers alleging A.P., K.P. and M.P.

but Father successfully completed the Informal Adjustment and the case was closed in March 2006. A program of Informal Adjustment is a negotiated agreement between a family and a local office of the Indiana Department of Child Services whereby the family agrees to participate in various services provided by the county in an effort to prevent the child/children from being formally deemed children in need of services (CHINS). See Ind. Code 31-34-8 et seq.
3

At the time of her arrest, Mother was on probation as a result of pleading guilty to prior, unrelated charges of operating a vehicle while intoxicated and contributing to the delinquency of a minor.

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were children in need of services ("CHINS") in August 2008. The parents admitted to the allegations contained in the CHINS petitions, and a dispositional hearing was held in November 2008. Following the dispositional hearing, the trial court entered orders formally removing all three children from Mothers and Fathers care and ordering the children to remain wards of FCDCS. The dispositional orders also directed the parents to participate in a variety of court-ordered services in order to achieve reunification with the children, including requirements that they: (1) submit to random drug testing; (2) cooperate and participate in any services recommended by FCDCS; (3) exercise regular visitation with the children; and (4) participate in mental health services as deemed necessary. Despite the childrens removal from her care, Mother continued to struggle with substance abuse. In September 2008, Mother pleaded guilty to an amended petition to revoke her probation after testing positive for benzodiazepines, cocaine, hydrocodone, cannibinoids, and alcohol. As a result, Mother was ordered to participate in Home with Hope Residential Program, an intensive outpatient recovery program, for at least ninety days. Mother entered the treatment program on August 11, 2008, but was discharged from the program approximately nine days later after she admitted to violating program policies by using drugs, manipulating a urine drug screen, and failing to return to the residential premises for more than twenty-four hours. Mother was incarcerated for thirty days and returned to Home with Hope in late October 2008. She left the program against staff advice on January 9, 2009, to participate in an alternative out-patient relapse prevention program called Seeds of Hope. Father, who had pleaded guilty to possession of cocaine in 2005 and to domestic

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battery in February 2007, was released from incarceration shortly after the children were removed from the family home in August 2008. He then began participating in Recovery Associates, an inpatient substance abuse program located in Terre Haute. Although Father successfully completed this substance abuse program in January 2009, he failed to follow FCDCSs recommendation to participate in the relapse prevention aftercare portion of the program, despite his promises to do so and FCDCSs recent relocation of the children to a new, nearby foster home in reliance on Fathers promises in order to facilitate visitation. Instead, Father joined Mother in Lafayette and enrolled in Seeds of Hope.4 For the ensuing months, both parents participation in substance abuse and other court-ordered services continued to be inconsistent and ultimately unsuccessful. Mother and Father regularly participated in weekly visits with the children and eventually progressed from fully supervised visits to semi-supervised overnight visits in preparation for an upcoming trial in-home visit scheduled to begin in August 2009. The parents visitation privileges quickly reverted to fully supervised visits by July 2009, however, due to their failure to follow through with a number of court-ordered services. These included Mothers refusal to submit to FCDCS request for a drug screen for six days in May 2009 and to participate in individual counseling, as well as Fathers positive drug screen for the prescription drug oxazepam in June 2009 and a "suspicious" drug screen in July 2009. (Tr. 257.) Thus, the trial home visit never occurred. In addition, neither Mother nor Father

4

Seeds of Hope provides apartments for program participants, who are required to pay rent and maintain suitable employment. Mother and Father struggled in this program and were eventually released unsuccessfully due in part to their inability to maintain suitable employment and pay rent.

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completed the Seeds of Hope program, and both parents continued to struggle with maintaining stable housing and employment. FCDCS filed petitions seeking the involuntary termination of both parents parental rights to all three children in October 2009. A consolidated three-day evidentiary hearing in the matter was held on March 8, 9, and 12, 2010. The trial court took the matter under advisement, and on March 19, 2010, the court entered a judgment terminating Mothers and Fathers parental rights to all three children. This appeal ensued. Discussion and Decision A. Standard of Review We begin our review by acknowledging that this court has long had a highly deferential standard of review in cases concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When reviewing the termination of parental rights, we will neither reweigh the evidence nor judge witness credibility. 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 most favorable to the judgment. Id. Moreover, in deference to the trial courts unique position to assess the evidence, we will set aside a 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 terminating Mothers and Fathers parental rights, the trial court entered specific findings and conclusions. When a trial courts judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake

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County Office of Family & Children, 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 courts decision, we must affirm. L.S., 717 N.E.2d at 208. B. Analysis The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution." In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must subordinate the interests of the parent to those of the child when evaluating the circumstances surrounding a termination. K.S., 750 N.E.2d at 837. Termination of a parent-child relationship is proper where a childs emotional and physical development is threatened. Id. Although the right to raise ones 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. Before an involuntary termination of parental rights can occur, the State is required to allege and prove, among other things: (B) there is a reasonable probability that: (i) the conditions that resulted in the childs removal or the reasons for placement outside the home of the parents will not be remedied; or (ii) the continuation of the parent-child relationship poses 7

a threat to the well-being of the child; [and] (C) termination is in the best interests of the child[.]

Ind. Code

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