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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: MARK SMALL Indianapolis, Indiana

ATTORNEY FOR APPELLEE: ALEXANDRA D. A. THOMAS Indiana Department of Child Services, Montgomery County Office Crawfordsville, Indiana

FILED
Sep 09 2008, 9:10 am

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE INVOLUNTARY TERMINATION OF PARENT-CHILD RELATIONSHIP OF M.W., A MINOR CHILD, AND MOTHER, JENNIFER WATKINS, JENNIFER WATKINS, Appellant-Respondent, vs. MONTGOMERY COUNTY DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

of the supreme court, court of appeals and tax court

CLERK

No. 54A04-0803-JV-178

APPEAL FROM THE MONTGOMERY CIRCUIT COURT The Honorable Thomas K. Milligan, Judge Cause No. 54C01-0703-JT-54

September 9, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

RILEY, Judge

STATEMENT OF THE CASE Appellant-Respondent, Jennifer Watkins (Mother), appeals the trial court's Order terminating her parental rights to her minor child, M.W. We affirm. ISSUE Mother raises one issue on appeal, which we restate as follows: Whether the Montgomery County Department of Child Services (DCS) presented sufficient evidence to support the involuntary termination of the parent-child relationship under Indiana Code section 31-35-2-4. FACTS AND PROCEDURAL HISTORY M.W. was born to Mother on July 30, 1999. On November 17, 2005, the DCS received a call that M.W., then six years old, had not been able to get into her home after school and had been taken back to school. Because the school informed DCS that this had happened before, the DCS initiated an investigation for lack of supervision. The

investigation resulted in a substantiation of neglect and a safety plan was instituted between Mother and DCS whereby Mother agreed to be awake and ready to care for M.W. when the school bus arrived at her home. On November 28, 2005, the DCS received a report that Mother was using, manufacturing, and selling methamphetamine from her residence. The report also expressed concern about the conditions of the home and indicated that the utilities were being shut off. Melissa Gibson (Gibson), a family case manager with the DCS, together with a sheriff's deputy, went to Mother's home to investigate the allegations in the report. Mother only 2

allowed them to enter inside the front door of her residence. From there, Gibson and the sheriff's deputy observed piles of debris, trash, and clothing around a small space heater used to heat the home. When Mother was questioned about the alleged drug use, she became angry and asked Gibson and the sheriff's deputy to leave. On November 29, 2005, M.W. was removed from Mother's care and custody. On December 20, 2005, the DCS filed a petition, alleging M.W. was a Child In Need of Services (CHINS) based on Mother's lack of supervision of M.W., the condition of her home, and her suspected drug use. On February 10, 2006, the trial court found M.W. to be a CHINS, and subsequently on March 10, 2006, a dispositional hearing was held. The dispositional order mandated Mother to undergo drug rehabilitation, individual and family counseling, and participate in supervised visits with her daughter. Marilyn Richardson (Richardson), a counselor and owner of Rainbow Recovery, diagnosed Mother with dependency on methamphetamine. According to Richardson, Mother has a long history of substance abuse. Specifically, Mother started abusing alcohol at age twelve or thirteen, using marijuana and benzodiazepines at age fourteen, methamphetamine at age seventeen, and amphetamines at age twenty-five. Because of this extensive history, Richardson prescribed a course of intensive outpatient, relapse prevention, and continuing care. Mother enrolled in the substance abuse program in February of 2006 but failed to complete the first course of treatment because of drug use. On May 26, 2006, due to Mother's failure to finish the substance abuse treatment at Rainbow House, the trial court relieved DCS of pursuing reunification services until Mother completed a residential substance abuse program. Mother did not enter a residential 3

treatment facility until September 26, 2006, when she entered Fellowship House. There, she attended intensive outpatient treatment but was discharged unsatisfactorily in November 2006 because she failed to find employment and to pay her fees. During her time at Fellowship House she was on probation for public intoxication and the discharge from the program, together with her positive test for marijuana, cocaine, and methamphetamine resulted in a violation of her probation. As a result, Mother was incarcerated for three months until February 15, 2007. In January 2007, Richardson conducted another assessment and again recommended Mother to enroll in an intensive outpatient treatment program upon release from prison. This time, Mother completed the program on October 9, 2007, and attends weekly Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings. Also, upon Mother's release from incarceration, the DCS required her to undergo a psychological evaluation by Dr. Bart Ferraro (Dr. Ferraro), a clinical psychologist. Dr. Ferraro's evaluation, which included his review of records, his interview of Mother, and psychological testing, disclosed that Mother has limited coping skills "in large part due to the degree to which it appears she used drugs to cope" and views "the world as a to[o] complex, to[o] demanding and to[o] unrewarding place and as such is trying to avoid or escape the stresses rather than engage productively." (Transcript p. 34). He concluded that Mother lacked awareness as to the depth and degree of her psychological problems, and that "her behavior has already repeatedly endangered [M.W.] and that this endangering behavior has been proved to be harmful to [M.W.]." (Tr. p. 36). With regard to Mother's future prognosis, Dr. Ferraro indicated that Mother is in need of the "kind of therapy that would occur regularly on a weekly basis and would occur for at least a couple of years and perhaps 4

longer." (Tr. p. 36). Nevertheless, he cautioned not to assume that "if [Mother] were to start therapy that things would be much better right away and a child could [not] be expected to be safely and securely cared for until a longer period of treatment had unfolded." In addition to Mother, Dr. Ferraro also tested M.W. He testified that M.W. is a fragile girl, whose ability to tolerate stress has significantly declined, indicating evidence of "unmet dependency needs." (Tr. p. 42). Dr. Ferraro revealed that children who do not "feel sufficiently cared for or nurtured [] often go into adolescence and adulthood in a searching mode and are more vulnerable to search in self-defeating or self-destructive ways via drugs, sex or other relationship problems." (Tr. p. 42). In May of 2007, Mother was also referred to Laura Dolph (Dolph) of Cummins Behavioral Health for individual therapy. Between May of 2007 and November of 2007, Mother attended only eight sessions despite the fact that weekly therapy had been recommended. Dolph indicated that Mother struggles with the ability to read her daughter's non-verbal cues, to be sensitive to what M.W. is saying, and to understand her emotional needs. In general, Mother has a history of instability in employment and housing. At the time of M.W.'s removal, Mother was not employed. In fact, she was last employed in January of 2005. Mother has been homeless, residing with family and friends. She lost her eligibility for Housing and Urban Development (H.U.D.) housing because she allowed her mother to stay with her in violation of H.U.D. rules. At the time of the termination hearing, Mother was still without employment and housing.

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On March 6, 2007, DCS filed its Petition to Terminate the Parent-Child Relationship between M.W. and both Mother and her biological father (Father). On November 20, 2007, the trial court conducted a trial on DCS' petition. On February 11, 2008, the trial court issued its Order, terminating the parental rights of Mother and Father. In its twelve-page Order, the trial court concluded that (1) the conditions and circumstances which resulted in M.W.'s removal from her Mother's care are not likely to be remedied and (2) a continuation of the parent-child relationship would be harmful and detrimental to M.W. Mother now appeals. 1 Additional facts will be provided as necessary. DISCUSSION AND DECISION Mother contends that the DCS did not present sufficient evidence to support the involuntary termination of the parent-child relationship between Mother and M.W. In reviewing termination proceedings on appeal, this court will not reweigh the evidence nor assess the credibility of the witnesses. In Re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We consider only the evidence that supports the trial court's decision and reasonable inferences drawn therefrom. Id. Where, as here, the trial court enters findings of fact and conclusions of law in its termination of

1

We note that Father is not part of this appeal.

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parental rights, our standard of review is two-tiered. Id. First, we determine whether the evidence supports the findings, and second, whether the findings support the conclusions of law. Id. In deference to the trial court's unique position to assess the evidence, we set aside the trial court's findings and judgment terminating a parent-child relationship only if they are clearly erroneous. Id. A finding of fact is clearly erroneous when there are no facts or inferences drawn therefrom to support it. Id. A judgment is clearly erroneous only if the conclusions of law drawn by the trial court are not supported by its findings of fact or the conclusions of law do not support the judgment. Id. The involuntary termination of parental rights is the most extreme measure that a court can impose and is only designated as a last resort when all other reasonable efforts have failed. Id. This policy is in recognition of the Fourteenth Amendment to the United States Constitution which provides parents with the right to establish a home and raise children. Id. However, these protected parental rights are not absolute and must be subordinated to the children's interest to maintain the parent-child relationship. Id. The purpose of terminating parental rights is not to punish parents but to protect their children. Id. Although parental rights have a constitutional dimension, the law allows for their termination when parties are unable or unwilling to meet their responsibilities as parents. Id. To effect the involuntary termination of a parent-child relationship, the DCS must present clear and convincing evidence establishing that: one (1) of the following exists:

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(i) the child has been removed from the parent for at least (6) months under a dispositional decree; (ii) a court has entered a finding under I.C.

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