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.

ATTORNEYS FOR APPELLANT: PAULA M. SAUER Danville, Indiana

ATTORNEYS FOR APPELLEE: JON R. ROGERS DCS Office Hendricks County Avon, Indiana ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana

FILED
Dec 29 2010, 9:37 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE INVOLUNTARY TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF N.B., Minor Child, and N.B., Mother, Appellant-Respondent, vs. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 32A01-1007-JT-321

APPEAL FROM THE HENDRICKS CIRCUIT COURT The Honorable J.V. Boles, Judge Cause No. 32C01-1002-JT-3

December 29, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION CRONE, Judge

Case Summary and Issues In this case, a juvenile court removed a baby from his drug-addicted mother and placed him with his grandfather. When the juvenile court found the baby to be a child in need of services ("CHINS"), the court ordered the mother to refrain from alcohol and illegal drug use, submit to and pass random drug tests, visit her son regularly, seek employment and stable housing, participate in intensive mental health and drug rehabilitation treatment, and participate in parenting skills programs. Six months later, the court found that the mother had been uncooperative with the Department of Child Services ("DCS") and held her in contempt of court for failing to submit to the drug tests or participate in rehab and visitation. Two months later, the court found her in contempt again for failing to follow orders regarding treatment and visitation. After months of the mother using drugs and failing to follow court orders, the DCS filed a petition to involuntarily terminate the mother's parental rights and have the child be adopted by the grandfather. The juvenile court terminated the parental relationship between N.B. ("Mother") and her baby ("N.B."). Mother now appeals, claiming that the juvenile court erred in considering her prior criminal record and that the evidence is insufficient to support the court's termination order. Finding no error, we affirm. Facts and Procedural History On October 24, 2008, Mother gave birth to N.B. The identity of N.B.'s father is unknown. At the time of N.B.'s birth, Mother was addicted to methadone, and N.B. tested positive for methadone addiction. On December 15, 2008, DCS filed a CHINS petition, and

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the juvenile court found that probable cause existed that N.B. was a CHINS. On that day, N.B. was removed from Mother's care and placed with his maternal grandfather. On February 5, 2009, the juvenile court found that N.B. was a CHINS based on N.B.'s and Mother's addiction to methadone, Mother's instability and inappropriate housing, and Mother's admitted need for parenting skills. In its February 5, 2009 dispositional order, Mother was required to (1) participate in home-based services recommended by DCS; (2) submit to random drug screens with twenty-four hours' notice and test clean; (3) receive intensive outpatient mental health counseling; (4) refrain from alcohol and illegal drug use; (5) undergo intensive inpatient services to address drug use and pain management; (6) participate in routine visitation with N.B.; and (7) seek employment. Appellee's App. at 6. On August 17, 2009, the juvenile court entered a permanency plan for termination, finding that Mother had failed to maintain regular contact with DCS and had failed to participate in visitation with N.B. On August 31, 2009, the juvenile court found Mother in contempt for failing to submit to random drug screens, failing to complete intensive in- or outpatient treatment programs or even provide documentation, and failing to participate in regular visitation with N.B. On October 21, 2009, the juvenile court held a parental review and participation hearing. Again, the court held Mother in contempt for her continued failure to comply with court-ordered services and obligations. The court admonished her that such continued noncompliance could lead to the termination of her parental rights. As of a March 25, 2010 review hearing, Mother remained noncompliant with the case plan. She had failed to submit

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to a drug screen since October 2009. Throughout the CHINS proceedings, she tested positive for drugs, and she admitted to using heroin, methamphetamine, and cocaine. She failed to complete the drug treatment programs she entered and reverted to using drugs each time she left a treatment program. At one point, while committed to Richmond State Hospital for court-ordered drug rehab, she received a pass to appear in court, but did not return to the hospital as ordered. Instead, she used drugs for three weeks and finally was taken back to the hospital in handcuffs. On February 11, 2010, the DCS filed a petition to involuntarily terminate Mother's parental rights. On June 1, 2010, the juvenile court held a hearing. Among the evidence admitted at the hearing was Mother's criminal record, which included a 2002 operating while intoxicated ("OWI") conviction, a 2007 battery conviction, and a 2007 probation violation. On June 15, 2010, the juvenile court entered an involuntarily termination order. As of the date of termination, Mother had been in Richmond State Hospital's rehab program for fortyseven days. Mother now appeals. Additional facts will be provided as necessary. Discussion and Decision I. Evidence of Mother's Criminal History Mother contends that the juvenile court abused its discretion by admitting evidence of her criminal history during the termination hearing. The decision to admit or exclude evidence is within the juvenile court's sound discretion. In re S.L.H.S., 885 N.E.2d 603, 614 (Ind. Ct. App. 2008). We review such a decision for an abuse of discretion. Id. An abuse of

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discretion occurs when the juvenile court's decision is against the logic and effect of the facts and circumstances before it. Id. Mother asserts that evidence regarding her criminal history is irrelevant and therefore inadmissible. See Ind. Evidence Rule 401 (defining relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"); see also Ind. Evidence Rule 402 (stating in part, "Evidence which is not relevant is not admissible"). Mother's relevancy claim is predicated on the fact that her 2002 and 2007 convictions and her 2007 probation violation occurred before N.B. was even conceived. Thus, she contends that the criminal history is too remote to be taken into account when judging her fitness as a parent. See In re A.L.H., 774 N.E.2d 896, 899 (Ind. Ct. App. 2002) (observing that a court should judge a parent's fitness to care for her child as of the time of the termination proceeding, taking into account changes in conduct during pendency of proceedings). As discussed infra, however, the juvenile court must evaluate the parent's habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation of the children. Based on that rule, trial courts have properly considered evidence of a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, lack of adequate housing, and employment. Id. (emphasis added) (citation and quotation marks omitted). Here, the juvenile court did not even address Mother's convictions or probation violation in its findings. However, the court mentioned Mother's two contempt citations for failure to follow court orders during the pendency of the CHINS proceedings. Clearly, the

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court was more concerned with Mother's current lack of regard for the law than about her prior convictions. Thus, although the court had discretion to consider Mother's criminal history among the many factors that contribute to a full assessment of her fitness to parent, such history clearly was not a major consideration in this case. We find no abuse of discretion here. II. Sufficiency of Evidence Mother contends that the evidence is insufficient to support the juvenile court's termination order. When reviewing a juvenile court's order terminating a parent-child relationship, we will not set it aside unless it is clearly erroneous. Castro v. State Office of Family & Children, 842 N.E.2d 367, 372 (Ind. Ct. App. 2006), trans. denied. We will neither reweigh evidence nor judge witness credibility. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2004), trans. denied. Rather, we will consider only the evidence and inferences most favorable to the judgment. Id. In Bester v. Lake County Office of Family & Children, 839 N.E.2d 143 (Ind. 2005), our supreme court stated, The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. A parent's interest in the care, custody, and control of his or her children is perhaps the oldest of the fundamental liberty interests. Indeed the parent-child relationship is one of the most valued relationships in our culture. We recognize of course that parental interests are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights. Thus, parental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities. Id. at 147 (citations, quotation marks, and alteration omitted).

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To obtain a termination of the parent-child relationship, DCS must establish that (A) one (1) of the following exists: (i) the child has been removed from the parent for at least six (6) months under a dispositional decree; (ii) a court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made; or (iii) after July 1, 1999, the child has been removed from the parent and has been under the supervision of a county office of family and children for at least fifteen (15) months of the most recent twenty-two (22) months; (B) there is a reasonable probability that: (i) the conditions that resulted in the child's 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 a threat to the well-being of the child; (C) termination is in the best interests of the child; and (D) there is a satisfactory plan for the care and treatment of the child. Ind. Code

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