Court of Appeals of Indiana | Memorandum Decision 89A01

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### MEMORANDUM DECISION 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.

A TTORNEY FOR A PPELLANT S Andrew J. Sickmann Boston Bever Klinge Cross & Chidester Richmond, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General David E. Corey Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary Termination of the Parent

- Child Relationship of D.J. (Minor Child) and K.T. (Mother ) and P.J. (Father) , Appellant s - Respondents

,

v.


### The Indiana Department of Child Services , Appellee

- P etitioner April 18, 2018 Court of Appeals Ca se No. 89A01

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- 2675 Appe al from the Wayne Superior Court The Honorable Darrin M. Dolehanty, Judge Trial Co urt Cause No. 89D03

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Crone , Judge
.Court of Appeals of Indiana | Memorandum Decision 89A01

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### Case Summary

[1] K.T. (“Mother”) and P.J. (“Father”) (collectively “Parents”) appeal the trial court’s order involuntarily terminating their parental rights to their minor child, D.J. (“Child”). Parents contend that the trial court erred in concluding that there i s a reasonable probability that the conditions that resulted in Child’s removal will not be remedied and that termination is in Child’s best interests. They also contend that their due process rights were violated when the trial court overruled their obje ctions to being called as witnesses by the Indiana Department of Child Services (“DCS”) at the factfinding hearing. Finding no error and no due process violation , we affirm

.



### Facts and Procedural History

[2] Parents are Child’s biological parents. Before Chil d was born, Parents lived with Child’s two half siblings, Jo.B. and Ja

. B. In March 2016, DCS filed petition s alleging that Jo.B. and Ja.B. were children in need of services (“CHINS”). In May 2016, Parents admitted to the truthfulness of the allegations i n the petition s , including that they each had a substance abuse problem that affected their ability to care for the children. The trial court in
those proceeding s ordered Parents to participate in certain services. On August 19, 2016, the court held a de tention hearing, after which the children were removed from Parents’ home an d made temporary wards of DCS.

[3] Child was born on August 22, 2016. One week later, while Child was still in the hospital, DCS filed a petition alleging Child to be a CHINS . The trial courtCourt of Appeals of Indiana | Memorandum Decision 89A01

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authorized DCS to take Child into protective custody because he had tested positive for illegal substances at birth and Parents were using illegal drugs, including heroin. DCS placed Child with his maternal aunt

. Parents initially denied the allegations in the CHINS petition but ultimately admitted that Child was a CHINS and that they had a substance abuse problem. In November 2016, the trial court issued a dispositional order directing Parents to participate in various services . DCS referred Parents for outpatient and residential substance abuse treatment, supervised parenting time, drug screens, and a residential detoxication program. A s detailed more fully below, after a hearing

on January 23, 2017, the trial court found Par ents in contempt of the dispositional order and sentenced them to sixty days of incarceration, to be stayed on the condition of full compliance with the order. 1

[4] I n March 2017, the CHINS cases were closed for Jo.B. and Ja.B., who at that time were living wi th their biological father. On July 5, 2017, DCS filed a petition to involuntarily terminate Parents’ parental rights to Child

. On October 12, 2017, the trial court held a factfinding hearing, during which DCS called Parents as witnesses in its case in c hief over their objections

. On October

1 On that same date, a contempt hearing was also held in Jo.B.’s and Ja.B.’s CHINS cases. Mother admitted that drug screens administered between September and December of 2016 showed that she had used heroin , marijuana, suboxone, and hydrocodone. Father admitted that drug screens administered between September and December of 2016 showed that he had used heroin, marijuana, and cocaine. “He also admitted that he had failed to attend substance abuse therapy a nd was removed from that program due to having failed to attend.” Appealed Order at 2. He further admitted that he had missed six visits with the children in November 2016.Court of Appeals of Indiana | Memorandum Decision 89A01

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30, 2017, the court issued an order setting out the foregoing undisputed facts and the following additional findings: 2

34. Shannon Trancoso was selected as the Court Appointed Special Advocate (CASA) for Child , as o f October 28, 2016.

35. Ms. Trancoso has observed interaction between Child , Mother and Father.

36. During the course of Child’s CHINS case, Ms. Trancoso has spoken with Mother about her addiction issues. Mother has expressed to Ms. Trancoso that her addiction started at the age of nineteen (1 9). Mother is now twenty

- five (25) years old. Mother was not specific about which drug or drugs she was abusing.

37. Mother has expressed to Ms. Trancoso a desire to not be an addict.

38. Father has expressed to Ms. Trancoso that he does not like the "position" he is in currently.

39. Ms. Trancoso has not seen Child or his parents since February, 2017.

40. Patrice Mabry is employed as a Family Case Manager (FCM) for the DCS, and was assigned to Jo.B.’s and Ja. B [.] ’s CHlNS cases.

....
42. At some point during Child’s CHINS case, FCM Mabry was assigned to that case as well.

2 We have replaced references to the parties’ names where appropriate.Court of Appeals of Indiana | Memorandum Decision 89A01

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.... 44. Both Mother and Father admitted to FCM Mabry that they had substance abuse issues.

.... 46. On some date that was not disclos ed, FCM Mabry took Father to Tara Treatment Center, for inpatient treatment. Father was not admitted into the treatment program due to not having his diabe t e s condition under control.

... . 52. Tom Pennington is an addictions counselor for Meridian Servic es.
53. Mr. Pennington interacted with Mother throu gh the attempted provision of “I OP” or intensive outpatient therapy.

54. I OP sessions are held three (3) times per week; three (3) hours per session.

55. Mother was involved in Mr. Pennington’ s s ervi ces from December, 201 6 through February, 2017.

56. In Decemb er, 2016, Mother attended one (1 ) appointment with Mr. Pennington, where they discussed her substance abuse issues, and where they determined that she should start action IOP sessions afte r the first of the year.
57. Duri ng IOP sessions in January, 2017, Mother was
s omewhat resistant to the program, but warmed up to it an d participated well in sessions.

58. During the Januar y sessions, Mother admitted that she wasCourt of Appeals of Indiana | Memorandum Decision 89A01

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using marijuana, xanax, and opiates.

59. In February, 2017, Mother’s attendance at IOP sessions dropped off. Mr. Pennington called Mother to encourage he r attendance, but she stopped at tending.

60. In August, 201 7, Mother attended three (3) or four (4) sessions of IOP, but has not attended since then.

61. Mother has not completed th e IOP program.
62. At a hearing held on January 23, 2017, Mother admitted that she had used heroin between November 4 and December 27, 2016.
63. At the same hearing, Father admitted that he had used heroin, marijuana, and cocaine between November 9 and December 19, 2016. He also admitted that he had failed to attend substance abuse therapy at Meridian Health Services, and had failed to visit Child six (6) times in November 2016.
64. Based upon the admissions described above, the Court concluded that Mother and Father were both in contempt of Court for not complying with the Dispositional Order.

65. Jessica Bell is a Behavioral Clinician for Meridian Services.

66. Ms. Bell was assigned to pro vide services for Mother in January, 2017, and served as Mother’s “case manager.”

67. Ms. Bell worked with Mother t o help her identify "triggers" t o her drug use / abuse. She also worked with Mother to help her find co ping skills to prevent drug use/abuse

. 68. At some time during Ms. Bell’ s involvement as case manager, Mother told her that she had been abusing suboxoneCourt of Appeals of Indiana | Memorandum Decision 89A01

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and marijuana.

69. Mother did not attend all of her appointments with Ms. Bell. 70. Mother was engaged and motivated during the appoin tments she did attend.
7|. Pri or to this trial, the last time Mother attended an appointment with Ms. Bell was toward the end of August, 2017.

.... 78. Jeremy Bane is a home

- based services case manager for Wernle Family and Children Treatment.

79. In late June, 2017, Mr. Bane received a referral from the DCS to provide supervised parenting time/ visitation services for Mother and Father.

... . 85. Mr. Bane has observed Mother and Father to be compliant, t o communicate well, and to be nurturing and carin g toward Child

. He has observed the parents to select age appropriate activities for their child.

86. Mr. Bane has had no concerns about how the parenting time sessions have gone.

87. Mr. Bane tries to encourage the parents to work on their rehabilita tion needs. and even t ook Fat her to the Richmond State Ho spital on September 25, 2017 in an effort t o enter into a rehab program at that facility. Following a drug screen in the admission process, Father was not admitted into the State Hospital program

. 88. I f pare ntal rights are terminated, the DCS plans for Child toCourt of Appeals of Indiana | Memorandum Decision 89A01

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be adopted by his aunt,

... with whom he h as been placed since shortly aft er his birth.

... . 94. Despite the existence of a child support order, [Child’ s aunt] has not received any child sup port payments from Mother or Father to assist her in caring for Child

. 95. Mother has been unemployed since 2015.

96. Mother has three (3) children.

97. None of Mother’ s children lives with her at this time. Child is placed with a relative. Ja. B. and J o. B. live with their father.

98. Father is thirty

- two (32) years old.

99. Father has two (2) children, including Child

. 100. Neither of Father’s children l ives with him.

Bas ed upon these findings. the Court concludes that the DCS has sustained the Petition by clear and convincing evidence; more specifically that:

... .
2. Child has been removed fr om both parents, for at least six (6) months, under the Dispositional Order in his Child in Need of Services (CHINS) case.

... 3. Child was removed from his parents’ care shortly afte r birth. and has continuously remained outside of their care since then, because both parents were abusing drugs that necessarily impaired their ability to care for their child. There remains a great er than reasonable probab ility that the parents’ respectiveCourt of Appeals of Indiana | Memorandum Decision 89A01

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addictions to drugs, and con tinued abuse of drugs, are not likely t o be remedied.

4. Ending the relationship between Child and his parents, and providing for a stable and sober parent or parents is the best course of ac tion for this child and termination of parental rights is in Child’s best interest.

5. There i s a satisfactory plan for Child’s care and treatment, that plan being adoption.

IT IS THEREFORE ORDERED that the parent

- child relationship [ between Parents and Child] is hereby terminated ....
Appealed Order at 3

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. Parents now appeal.



### Discussion and Decision

[5] “P arental rights are of a constitutional dimension, but the law provides for the termination of these rights when the parents are unable or unwilling to meet their parental responsibilities. ” In re D.P. , 27 N.E.3d 1162, 1165 (Ind. Ct. App. 2015). “ The purpose of terminating parental righ ts is not to punish parents, but to protect their children. ” Id

. “ The involuntary terminat ion of parental rights is the most extreme sanction a court can impose on a parent because termination severs all rights of that parent to his or her children.” In re R.A. , 19 N.E.3d 313, 321 (Ind. Ct. App. 2014), trans. denied (2015). “ For this reason, termination is intended as a last resort, available only when all other reasonable efforts have failed. ” Id

.Court of Appeals of Indiana | Memorandum Decision 89A01

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[6] A petition for the involuntary termination of parental rights must allege in pertinent part:
(A) that one (1) of the following is true:
(i) The c hild has been removed from the parent for at least six (6) months under a dispositional decree.

.... (B) that one (1) of the following is true:
(i) There is a reasonable probability that the condit ions that resulted in the child’ s removal or the reasons fo r 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 occasion s, 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

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- 4(b)(2) (emphasis added). DCS must prove “ each and every element” by clear and convincing evidence. In re G.Y. , 904 N.E.2d 1257, 1261 (Ind. 2009); Ind. Code § 31

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- 2. If the trial court finds that theCourt of Appeals of Indiana | Memorandum Decision 89A01

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allegations in the petition are true, the court shall terminate the parent

- child relationsh ip. Ind. Code § 31

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- 2

- 8(a).

[7] “ Our standard of review is highly deferential in cases concerning the termination of parental rights. ” D.P. , 27 N.E.3d at 1165.
We neither reweigh evidence nor assess witness credibility. We consider only the evidence and reasonable inferenc es favorable to the trial court’ s judgment. Where the trial court enters findings of fact and conclusions thereon, we apply a two

- tiered standard of review: we first determine whether the evidence supports the findings and then determi ne whether the findings support the judgment. In deference to the trial court’ s unique position to assess the evidence, we will set aside a judgment terminating a parent

- child relationship only if it is clearly erroneous.
C.A. v. Ind. Dep’t of Child Servs

. , 15 N.E.3d 85, 92

- 93 (Ind. Ct. App. 2014) (citations omitted). “ A judgment is clearly erroneous if the findings do not support the trial court’ s conclusions or the conclusions do not support the judgment .” In re W.M.L. , 82 N.E.3d 361, 367 (Ind. Ct. App . 2017).

[8] Parents contend that the trial court clearly erred in concluding that there is a reasonable probability that the conditions that resulted in Child’s removal will not be remedied 3 and that termination is in Child’s best interests . They also

3 As state d above, t he trial court concluded that there was a “greater than reasonable probability” that the conditions that resulted in Child’s removal will not be remedied. Appealed Order at 7. We take this to mean that DCS surpassed its statutory burden. We ex press no opinion on this assessment.Court of Appeals of Indiana | Memorandum Decision 89A01

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claim that their due process rights were violated by being called as witnesses by DCS at the factfinding hearing.


### Section 1

– The trial court’s order is not clearly erroneous
.
[9] To determine whether the conditions that resulted in a child’s removal will not be remedied, the trial court engages in a two

- step analysis. In re A.W. , 62 N.E.3d 1267, 1273 (Ind. Ct. App. 2016). “ The court first identifies the conditions that led to rem oval and then determines whether there is a reasonable probability that those conditions will not be remedied. ” Id . “ The second step requires trial courts to judge a parent ’ s fitness at the time of the termination proceeding, taking into consideration ev idence of changed conditions, and balancing a ny recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. ” Id . (quotation marks omitted). “ Trial courts ha ve discreti on to weigh a parent’ s prior history more heavily than efforts made only shortly before termination, and t he court may find that a parent’ s past behavior is the best predictor of her future behavior. ” Id

. The trial court may consider services offered by DCS and the parent’s response to those services as evidence of whether conditions will be remedied. A.D.S. v. Ind. Dep’t of Child Servs. , 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied

. “ Where there are only temporary improvements and the pattern of conduct shows no overall progress, the court might reasonably find that under the circumstances, the problema tic situation will not improve.” In re Involuntary Termination of Parent Child
Relationsh ip of A.H. , 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). DCS “is notCourt of Appeals of Indiana | Memorandum Decision 89A01

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required to provide evidence ruling out all possibilities of change; rather, it need only establish that there is a reasonable probability that the parent’s behavior will not change.” A.D. S. , 987 N.E.2d at 1157 (quotation marks omitted).

[10] In determining what is in a child’s best interests, the trial court is required to look to the totality of the evidence. In re A.G. , 45 N.E.3d 471, 479 (Ind. Ct. App. 2015), trans. denied (2016). In so do ing, the court must subordinate the interests of the parents to those of the child. Id . “ The court need not wait until the child is irreversibly harmed before terminating the parent

- child relationship. ” Id

.

[11] Parents challenge only eight of the trial cour t’s one hundred findings (numbers 36, 37, 38, 44, 46, 58, 62, and 63), claiming that they are insufficiently specific to support the court’s conclusions that there is a reasonable probability that the conditions that resulted in Child’ s removal, i.e., Pare nts’ addiction to and abuse of drugs , will not be remedied and that termination is in Child’s best interests. 4 They assert that “[w]hat was offered at the fact finding hearing was a general framework of some substance abuse, but it was unclear when drugs were used, over what time period, and whether substance abuse remained a problem at the time of the fact finding hearing.” Appellants’ Br. at 15

- 16.

[12] We disagree. Parents do not specifically challenge the CASA’s testimony regarding Mother’s admission to a six

- year history of drug addiction. During

4 We treat Parents’ best interests argument as coextensive with their remedied conditions argument.Court of Appeals of Indiana | Memorandum Decision 89A01

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the CHINS proceedings involving Child and his half siblings, which started in March 2016, Parents admitted to using (and/or testing positive for using) heroin, cocaine, meth, marijuana, X anax, and opiates up to and including January 2017 . Parents admitted to having a substance abuse problem in September 2016 and only sporadically attended court

- ordered substance abuse therapy and treatment . Mother stopped attending sessions two months before
the October 2017 factfinding hearing, and a drug screen prevented Father from enrolling in a rehabilitation program less than three weeks before the hearing. Based on the trial court’s findings and the reasonable inferences to be drawn therefrom, we cannot say that the tr ial court clearly erred in concluding that there is a reasonable probability that the conditions that resulted in Child’s removal will not be remedied and that termination is in Child’s best interests.


### Section 2

– Parents’ due process rights were not viola ted as a result of being called as witnesses by DCS
.
[13] When DCS called Parents as witne sses during its case in chief, they objected on the basis that they would be asked incriminating questions regarding drug use and other matters. The trial court overruled the objections and noted that Parents’ counsel could object to such questions on Fifth Amendment grounds, which counsel did. 5 The trial court sustained those objections and stated that it would decline to draw negative inferences from Parents’ refusal to testify. Cf

.

5 See U.S. C ONST ., amend

. V (“No person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ....”).Court of Appeals of Indiana | Memorandum Decision 89A01

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Hardiman v. Cozmanoff

, 4 N.E.3d 1148, 1152 (Ind. 2014) (noting that Fifth Amendment protects individual against being involuntarily called as witness against himself in criminal prosecution but “‘ does not forbid adverse inferences against pa rties to civil actions when they refuse to testify in response to probative evidence offered against them.’”) (quoting Baxter v. Palmigiano , 425 U.S. 308, 318 (1976)).

[14] On appeal, Parents argue that the termination order should be reversed because the trial court’s overruling of their objections to being called as witnesses violated their due process rights. DCS argues, and we agree, that reversal is not required because Pare nts cannot demonstrate ha rm resulting from any alleged due process violation , given that the trial court declined to draw negative inferences from their refusal to answer certain questions on Fifth Amendment grounds. See Ind. Appellate Rule 66(A) (“ No error or defect in any rulin g or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, inCourt of Appeals of Indiana | Memorandum Decision 89A01

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light of all the evidence in the case, is sufficiently minor so as not to affect the sub stantial rights of the parties. ”). Therefore, we affirm. 6

[15] Affirmed.

Bailey, J., and Brown, J., concur.

6 We reject Parents’ argument that “procedural due process should afford parents like Mo ther and Father the ability to not be called as w itnesses against themselves, pursuant to the rights enshrined in the Fifth Amendment as incorporated to the states by the Fourteenth Amendment.” Appellants’ Br. at 28 . This argument is based on the faulty premise that termination proceedings are quasi

- criminal in nature

. Cf

. In re E.D. , 902 N.E.2d 316, 322 (Ind. Ct. App. 2009) (“ The due process safeguards afforded a defendant in a criminal trial are not applicable to a parent in a civil termination proceed ing. Indeed, our Indiana Supreme Court has recognized that ‘ criminal prosecutions and termination proceedings are substantially different in focus. The resolution of a civil juvenile [termination] proceeding focuses on the best interests of the child,
no t on guilt or innocence as in a criminal proceeding. ’ ” ) (a lteration in E.D. ) (quoting Baker v. Marion Cty. Office of Family & Children , 810 N.E.2d 1035, 1039 (Ind. 2004)) , trans. denied

.