In re Termination of the Parent-Child Relationship of: K.D.L., K.A.L.J., & K.R.L.L. (Minor Children) and K.D.J., Jr. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 15, 2017
• Docket: 79A05-1705-JT-1151
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 15 2017, 9:11 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Luisa M. White Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re Termination of the Parent- November 15, 2017 Child Relationship of: Court of Appeals Case No. K.D.L., K.A.L.J., & K.R.L.L. 79A05-1705-JT-1151 (Minor Children) Appeal from the Tippecanoe and Superior Court The Honorable Faith Graham, K.D.J., Jr. (Father), Judge Appellant-Respondent, Trial Court Cause Nos. 79D03-1608-JT-84 v. 79D03-1608-JT-85 79D03-1608-JT-86 The Indiana Department of Child Services, Appellee-Petitioner.

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 1 of 12 Case Summary and Issue [1] K.D.J., Jr. (“Father”) appeals the juvenile court’s order terminating his parental

rights to his children K.D.L., K.A.L.J., and K.R.L.L. Father raises several

issues for our review, which we consolidate and restate as whether the juvenile

court’s termination order is clearly erroneous. Concluding the juvenile court’s

order is not clearly erroneous, we affirm.

Facts and Procedural History [2] Father and K.L.-M. (“Mother”) are the parents of six-year-old K.D.L., five-

year-old K.A.L.J., and three-year-old K.R.L.L. (“Children”). Father and

Mother were never married and Mother is now married to J.M. (“Stepfather”).

[3] On August 28, 2015, Mother and Stepfather were arrested for possession of

synthetic drugs and operating a vehicle while intoxicated. K.R.L.L. was in the

vehicle when Mother and Stepfather were arrested. At the time of their arrest,

Father was incarcerated in the Indiana Department of Correction (“DOC”) for

his convictions of residential entry and possession of a controlled substance. 1

Due to Father’s incarceration and Mother and Stepfather’s arrest and alleged

substance abuse, the Indiana Department of Child Services (“DCS”) removed

1 Father’s criminal history includes convictions for residential entry and attempted theft in 2006; possession of marijuana and possession of paraphernalia in 2009; trespass, possession of marijuana, failing to stop after an accident, and two convictions of resisting law enforcement in 2011; trespass, residential entry, and possession of a controlled substance in 2014.

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 2 of 12 Children from Mother and Father’s care and filed a petition alleging the

Children were children in need of services (“CHINS”).2

[4] On November 17, 2015, the juvenile court entered its order adjudicating the

Children as CHINS. On December 10, 2015, the juvenile court entered its

dispositional order. The juvenile court ordered Father, upon release from

prison, to: (1) contact DCS within twenty-four hours of his release; (2)

participate in visits with the Children; (3) participate in and follow

recommendations of home-based case management; (4) participate in and

follow recommendations of therapy; (5) remain drug and alcohol free; (6)

submit to random drug screens; (7) follow the terms of his probation; and (8)

obtain and maintain stable housing and income.

[5] Father was released from incarceration on February 8, 2016. Following his

release, Father contacted DCS and met with his family case manager, Sally

Messmer. Messmer provided Father with contact information for his referred

services and informed him to stay away from Mother because she had a

protective order against him. Father then participated in one visitation with the

Children before he was arrested on February 22, 2016, for violating Mother’s

protective order. Father was charged with invasion of privacy, pleaded guilty,

and served thirty days in prison before his release in March of 2016.

2 Prior to this CHINS proceeding, Father and Mother were involved in a previous CHINS case stemming from allegations of domestic violence and drug use. Mother and Father both engaged in services and DCS reunited the Children with Mother.

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 3 of 12 [6] DCS referred Father to multiple services following his release from

incarceration. DCS referred Father to George Junior Republic for visitation,

home-based case management, and individual therapy services. Father met

with George Junior Republic on one occasion to work on finding housing and

employment. George Junior Republic later discharged Father from its services

“due to the inability to service the family.” Exhibits, Volume 1, Exhibit 6 at 9.

[7] In April of 2016, DCS referred Father to Wabash Valley Alliance for therapy

services, but Father did not follow through. Father only began services in

August of 2016 and met with Wabash’s clinical supervisor on one occasion.

The clinical supervisor recommended meeting again to determine what services

may be needed but Father never followed up or met with anyone from Wabash

Valley Alliance again.

[8] DCS also referred Father to Lifeline Youth for supervised visits with the

Children and case management. Father’s case manager, Diane Pinckney,

testified that Father had been “doing a pretty good job[,]” but missed quite a

few appointments towards the end when he stopped “showing up or

participating.” Transcript, Volume 2 at 120, 122. When Pinckney spoke with

Father by telephone inquiring into why he missed appointments, Father told

her he “ran because he found out there was a warrant for his arrest for violating

his probation.” Id. at 122. Lifeline Youth later discharged Father for having

too many cancellations.

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 4 of 12 [9] As for Father’s employment, Father was employed at two different jobs from

March to September of 2016, working at each job for about a month. Also,

during this time, Father was ordered to submit to random drug screens. All

told, Father failed to report for eleven drug screens and tested positive for drugs

on two different occasions.

[10] On August 16, 2016, DCS filed petitions to terminate Father’s and Mother’s

parental rights to each of the Children. On September 16, 2016, Father was

arrested for possession of marijuana and the State filed a notice of probation

violation. Father remained incarcerated until November 14, 2016. The

juvenile court held evidentiary hearings on the petitions on October 13, 2016,

and January 24, 2017. On May 3, 2017, the juvenile court entered its order

terminating Father’s and Mother’s parental rights. The juvenile court

concluded, in relevant part:

CONCLUSIONS OF LAW

1. There is a reasonable probability the conditions that resulted in removal of the children or the reasons for continued placement outside the home will not be remedied. Neither parent has demonstrated the ability or willingness to make lasting changes from past behaviors. There is no reasonable probability that either parent will be able to maintain safety and stability to care for the children.

2. Continuation of the parent-child relationships poses a threat to the well-being of the children. The children need stability in life. The children need parents with whom the

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 5 of 12 children can form a permanent and lasting bond to provide for the children’s emotional and psychological as well as physical well-being.

***

4. For the foregoing reasons, it is in the best interests of [Children] that the parental rights of [Mother] and [Father] be terminated.

Appellant’s Appendix, Volume II at 35. Father now appeals.3

Discussion and Decision I. Standard of Review [11] Involuntary termination of parental rights is “an extreme measure that is

designed to be used as a last resort when all other reasonable efforts have

failed.” In re C.G., 954 N.E.2d 910, 916 (Ind. 2011). Indiana Code section 31-

35-2-4(b)(2) provides, in pertinent part, what must be proven in order to

terminate parental rights:

(2) The petition must allege:

(B) that one (1) of the following is true:

3 Mother also filed a notice of appeal, but her appeal was dismissed upon her own motion.

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 6 of 12 (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.

(C) that termination is in the best interests of the child . . . .

The State must prove each element by clear and convincing evidence. In re

G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). “[I]f the court finds that the

allegations in a petition . . . are true, the court shall terminate the parent-child

relationship.” Ind. Code § 31-35-2-8(a). “When reviewing the termination of

parental rights, we do not reweigh the evidence or judge witness credibility.” In

re G.Y., 904 N.E.2d at 1260. Rather, we consider only the evidence and

reasonable inferences most favorable to the juvenile court’s judgment. Id.

[12] In addition, because the juvenile court entered findings of fact and conclusions

thereon in terminating Father’s parental rights, we apply a two-tiered standard

of review. First, we determine whether the evidence supports the findings, and

second, we determine whether the findings support the judgment. Id. We set

aside a juvenile court’s judgment only if it is clearly erroneous. Id. A judgment

is “clearly erroneous if the findings do not support the . . . conclusions or the

conclusions do not support the judgment.” Bester v. Lake Cty. Office of Family &

Children, 839 N.E.2d 143, 147 (Ind. 2005).

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 7 of 12 II. Termination Order [13] Father contends the juvenile court’s order was clearly erroneous in several

respects. He argues DCS failed to prove the conditions resulting in the

Children’s removal will not be remedied; DCS failed to prove he posed a threat

to the Children’s well-being; and DCS failed to prove termination was in the

Children’s best interest.

[14] First, Father argues DCS failed to prove there was a reasonable probability the

conditions leading to the Children’s removal will not be remedied. In

determining whether the conditions that led to a child’s removal will not be

remedied, the juvenile court must judge a parent’s fitness to care for his child at

the time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct.

App. 2010). However, the juvenile court’s inquiry must also evaluate a parent’s

habitual patterns of conduct to determine the probability of future neglect or

deprivation of the child. Id. The juvenile court may properly consider

“evidence of a parent’s prior criminal history, drug and alcohol abuse, history

of neglect, failure to provide support, and lack of adequate housing and

employment.” A.F. v. Marion Cty. Office of Family & Children, 762 N.E.2d 1244,

1251 (Ind. Ct. App. 2002), trans. denied. The juvenile court may also consider

the services the DCS has offered to a parent and the response to those services.

In re M.S., 898 N.E.2d 307, 311 (Ind. Ct. App. 2008).

[15] A parent’s history of incarceration and the effects upon the children is also a

relevant consideration. In re A.A.C., 682 N.E.2d 542, 545 (Ind. Ct. App. 1997).

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 8 of 12 Individuals who pursue criminal activity run the risk of being denied the

opportunity to develop positive and meaningful relationships with their

children. In re A.C.B., 598 N.E.2d 570, 572 (Ind. Ct. App. 1992). Finally, the

DCS is not required to rule out all possibilities of change. Rather, it need

establish “only that there is a reasonable probability that the parent’s behavior

will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).

[16] In removing the Children from Father’s and Mother’s care and placing them in

foster care, the CHINS petition noted substance abuse on the part of Mother

and Stepfather, and Father’s incarceration in the DOC. Following the

Children’s CHINS adjudication and Father’s release from prison, Father was

ordered to, among other things, participate in and follow recommendations of

DCS, remain drug and alcohol free, submit to random drug screens, follow the

terms of his probation, and obtain and maintain stable housing and income.

[17] From the filing of the CHINS petition to the termination hearing, Father was

not compliant with the services offered by DCS, tested positive for drugs on two

occasions and failed to submit to eleven drug screens, only had stable income

for about two months, and was incarcerated on two different occasions for

committing crimes. Contrary to Father’s argument, DCS did not seek to

terminate his parental rights solely on the basis of his criminal history and

incarceration. Rather, his repetitive criminal behavior combined with his

failure to follow through with programs and services offered by DCS and his

inability or unwillingness to care for his children for any length of time leads to

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 9 of 12 the conclusion the issues resulting in the Children’s removal from his care will

not be remedied.4

[18] Father also points to evidence of changed conditions and asserts by the time of

the final termination hearing, he was enrolled in and taking classes at Ivy Tech

and working full time at McDonalds. However, evidence of changed

conditions are balanced against habitual patterns of conduct to determine

whether there is a substantial probability of future neglect. In re E.M., 4 N.E.3d

636, 643 (Ind. 2014). We give deference to the juvenile court in balancing this

evidence, and the juvenile court has discretion to weigh a parent’s prior history

more heavily than efforts made prior to termination. Id. Here, Father’s

repetitive criminal history and unwillingness to take appropriate action when he

had the opportunity to do so weighs heavily against him and evidences a

reasonable probability his behavior will not change long-term. The juvenile

court did not clearly err in concluding the evidence shows a reasonable

probability the conditions resulting in the Children’s removal will not be

remedied.5

4 Father’s argument that the testimony and evidence concerning his participation in DCS programs reveals “many positives[,]” Father’s Appeal Brief at 17, is merely a request to reweigh the evidence, which we cannot do. In re G.Y., 904 N.E.2d at 1260. 5 Father also contends the juvenile court erred in concluding that continuation of the parent-child relationship posed a threat to the Children’s well-being. However, Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires only one element in that subsection be true to terminate parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we conclude the evidence is sufficient to show a reasonable probability the conditions resulting in the Children’s removal will not be remedied, we need not determine whether the juvenile court erred in concluding continuation of the parent-child relationship posed a threat to the Children’s well-being.

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 10 of 12 [19] Father also contends DCS failed to prove termination was in the Children’s best

interest. “In determining what is in the best interests of the [Children], the

[juvenile] court is required to look beyond the factors identified by the DCS and

look to the totality of the evidence.” In re H.L., 915 N.E.2d 145, 149 (Ind. Ct.

App. 2009).

The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Recommendations of the case manager and court-appointed advocate, in addition to evidence that the conditions resulting in removal will not be remedied, are sufficient to show by clear and convincing evidence that termination is in the [Children’s] best interests.

In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014) (citations omitted), trans.

denied.

[20] As noted above, there is sufficient evidence that the conditions resulting in the

Children’s removal will not be remedied. In addition, the DCS case manager

recommended termination.

[DCS]: Ms. Messmer, as you sit here today, do you believe it’s in the children’s best interest for their parental rights to be terminated?

[Messmer]: Yes.

Transcript, Vol. 2 at 163. Finally, we note the Children need stability and have

been cared for by foster parents for over two years.

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 11 of 12 [21] Accordingly, DCS presented clear and convincing evidence from which the

juvenile court could conclude that termination of Father’s parental rights was in

the best interests of the Children.

Conclusion [22] DCS established by clear and convincing evidence the requisite elements to

support the termination of Father’s parental rights. The judgment of the

juvenile court terminating Father’s parental rights is affirmed.

[23] Affirmed.

Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017 Page 12 of 12