Preview:

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.

FILED
Dec 28 2011, 9:50 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: WESLEY D. SCHROCK Anderson, Indiana

ATTORNEYS FOR APPELLEE: DOROTHY FERGUSON Indiana Department of Child Services Anderson, Indiana ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE INVOLUNTARY TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF: A.W. (Minor Child) And N.W. (Mother) Appellant-Respondent, vs. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 48A02-1105-JT-416

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable G. George Pancol, Judge Cause No. 48D02-1005-JT-240

December 28, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge Case Summary N.W. ("Mother") appeals the involuntary termination of her parental rights to her child, A.W. Concluding that the Indiana Department of Child Services, local office in Madison County ("MCDCS"), presented clear and convincing evidence to support the trial court's judgment, we affirm. Facts and Procedural History Mother is the biological mother of A.W., born in October 2008. The facts most favorable to the trial court's judgment reveal that A.W. was born while Mother was incarcerated. At the time of A.W.'s birth, Mother had an open CHINS case involving another child, R.W., who was removed by MCDCS based on substantiated neglect allegations.1 Mother's boyfriend, J.I., was permitted to take A.W. home from the hospital and care for her until Mother's release in January 2009. As part of the terms or her release from incarceration, Mother was ordered to participate in the Madison County Drug Court program. In June 2009, MCDCS received a report from Drug Court personnel indicating Mother had refused to participate in mandatory drug screens and a warrant for her arrest had been issued. The report also

Mother's parental rights to R.W. were later terminated in July 2009. Another panel of this Court affirmed the trial court's termination order pertaining to R.W. in an unpublished memorandum decision in March 2010. See In re N.W., 924 N.E.2d 677 (Ind. Ct. App. 2010).
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indicated that there were grave concerns about A.W.'s living arrangements with J.I. due to alleged incidents of domestic violence in the home. When MCDCS case manager Rebekah Johnson visited the family home the next day, Mother had already been arrested. In addition, J.I., who claimed to be A.W.'s biological father, was unable to produce any legal documentation to support this claim.2 A.W. was therefore taken into emergency protective custody and placed in foster care. Mother remained incarcerated for approximately thirty days and was thereafter released to participate in the Stepping Stones drug rehabilitation program. Mother again refused to comply with the terms of the Drug Court program and was re-incarcerated in August 2009. In October 2009, Mother was sentenced to thirteen years of incarceration, with an earliest possible release date in November 2014. Meanwhile, A.W. was adjudicated a CHINS on August 5, 2009. Following a hearing in September 2009, the trial court entered a dispositional order formally removing A.W. from Mother's care and custody. The court's dispositional order also incorporated a Parental Participation Plan and directed Mother to participate in a variety of services designed to enhance her parenting abilities and to facilitate reunification with A.W. Among other things, Mother was ordered to participate in home-based counseling services, submit to random drug screens, attend NA/AA classes, obtain stable

Since this time, J.I. was proven not to be A.W.'s biological father. L.F. was thereafter alleged to be A.W.'s biological father, but L.F. denies paternity. In November 2010, L.F. filed a motion requesting that the court dismiss him as a Respondent in this case. In its termination order, the trial court terminated any parental rights L.F. may have had in A.W. Because L.F. does not participate in this appeal, we limit our recitation of the facts to those pertinent solely to Mother's appeal of the termination of her parental rights to A.W.
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employment and housing, establish paternity, and, if incarcerated, apply for and participate in any programs or services available through IDOC. In May 2010, MCDCS filed a petition seeking the involuntary termination of Mother's parental rights to A.W. During a permanency hearing in June 2010, the trial court granted MCDCS's request that the permanency plan be changed from reunification to termination of parental rights and adoption. The court also granted MCDCS's petition that was made pursuant to Indiana Code section 31-34-21-5.6 that reasonable efforts to reunify Mother and A.W. were not required. An evidentiary hearing on the termination petition was eventually held in December 2010. During the termination hearing, MCDCS presented evidence of

Mother's (1) ongoing incarceration with an earliest possible release date not until November 2014; (2) significant criminal history, including convictions for residential entry, theft, receiving stolen property, forgery, and fraud; (3) lengthy history of involvement with MCDCS, including the termination of her parental rights to another older child; (4) unresolved substance-abuse issues; and (5) current inability to provide A.W. with a safe and stable home environment. At the conclusion of the termination hearing, the trial court took the matter under advisement. In April 2011, the trial court issued its judgment terminating Mother's parental rights to A.W. Mother now appeals. Discussion and Decision 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 4

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 court's unique position to assess the evidence, we will set aside a judgment terminating a parentchild 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 Mother's parental rights, the trial court entered specific findings and conclusions. When a trial court's judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. 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 i nference." Quillen v. Quillen, 671 N.E.2d 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 "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. These parental interests, however, are not absolute and must be subordinated to the child's interests when determining the proper disposition of a petition to terminate parental rights. Id. In addition, although the right to raise one's own child should not be terminated solely because there is a better

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home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. K.S., 750 N.E.2d at 836. Before an involuntary termination of parental rights may occur 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 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) termination is in the best interests of the child . . . .

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