MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 21 2020, 9:14 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William Elliott Happel Curtis T. Hill, Jr. Thomasson, Thomasson, Long Attorney General & Guthrie, P.C. Abigail R. Recker Columbus, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the October 21, 2020 Parent-Child Relationship of: Court of Appeals Case No. K.D. (Minor Child) and 20A-JT-1034 S.B. (Father) Appeal from the S.B. (Father), Bartholomew Circuit Court The Honorable Appellant-Respondent, Kelly Benjamin, Judge v. The Honorable Heather Mollo, Magistrate Indiana Department of Child Trial Court Cause No. Services, 03C01-1904-JT-1831 Appellee-Petitioner
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 1 of 9 Case Summary [1] S.B. (“Father”) appeals the termination of his parental rights to K.D. (“Child”).
We affirm.
Facts and Procedural History [2] Father and N.D. (“Mother”) (together “Parents”) are the biological parents of
Child, born in November 2016. Mother has two older children from prior
relationships. Mother’s parental rights were also terminated, but she has not
appealed, so we limited our narrative to the facts relevant to Father.
[3] In December 2017, the Department of Child Services (DCS) received a report
that Mother was leaving Child with various relatives and abusing illegal
substances. A month later, DCS received another report that Mother was
homeless and abusing illegal substances. An Emergency Custody Order was
issued, and DCS removed Child from Mother’s care on January 18, 2018. The
next day, DCS filed a petition alleging Child was a Child in Need of Services
(CHINS). Child was placed with C.D., the father of one of his half-siblings.
Father’s whereabouts at the time were unknown. He was aware that Child had
been removed but did not come forward because there was a warrant for his
arrest for possession of methamphetamine and false informing. In April, Father
was arrested on the warrant, as well as for possession of methamphetamine,
resisting law enforcement, and false informing. He appeared in custody at the
CHINS initial hearing in May. In June, Father admitted Child was a CHINS
due to his incarceration and substance abuse. He also agreed to participate in Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 2 of 9 services, including a substance-abuse evaluation and inpatient treatment. While
incarcerated, Father participated in Fatherhood Engagement classes and
underwent substance-abuse and mental-health assessments through
Centerstone. In August, Father pled guilty to two counts of Level 6 felony
possession of methamphetamine, one count of Class B misdemeanor false
informing, and one count of Class A misdemeanor resisting law enforcement. A
month later, he was sentenced to probation and released on “house arrest.” Tr.
p. 28. He then began supervised visitation with Child. However, while on
probation, Father twice tested positive for methamphetamine—once in October
and once in November—and was arrested in late November for possession of a
syringe. In January 2019, Child’s permanency plan was changed to adoption
with a concurrent plan of reunification.
[4] Father remained in custody until March 2019, when the court in the criminal
case accepted his admission to violating probation and returned him again to
probation, with an order to successfully complete the Recovery Enables a Life
For Men (REALM) program, a six-month residential substance-abuse program.
On March 21, Father began the REALM program, where he was diagnosed
with a severe methamphetamine-use disorder. While at the REALM program,
Father had twice-weekly visits with Child, then two-and-a-half years old. Father
also participated in Fatherhood Engagement classes, where his therapist felt he
showed “insight.” Appellant’s App. Vol. II p. 15. Father acknowledged he was
in a cycle of incarceration, release, relapse, and then reincarceration. He also
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 3 of 9 stated that Mother added to his substance-abuse issue and that he would need
to stay away from her to maintain sobriety.
[5] On April 1, DCS filed a petition to terminate Parents’ rights. Shortly thereafter,
Father was informed of the termination petition at a Child and Family Team
meeting and was told that he should continue with the REALM program, that
DCS services would remain open to him, and that no changes would occur
unless a termination-of-rights order was issued. Family case manager Arielle
Beller “explained [the] expectations for [Father and] the importance of where
the case was in the timeframe for permanency.” Id. at 16. But on May 8, Father
left the REALM program without permission because he “wanted to use drugs”
and felt that Child “was gonna get taken no matter what” he did. Tr. pp. 32,
176. Leaving the REALM program “was considered an escape,” and therefore
the State filed a motion to revoke Father’s probation in the criminal case, and a
warrant was issued for his arrest. Appellant’s App. Vol. II p. 15. Later that
month, Father was arrested on the warrant.
[6] The termination trial occurred over two days in June and August 2019. Father
testified that he was still struggling with substance abuse but that he did not feel
his substance abuse impacted his parenting because when he’s on drugs he still
“pay[s] attention to Child,” is “loving,” and “take[s] care of him.” Tr. p. 33.
However, he said his incarcerations did have a negative impact on Child.
Child’s guardian ad litem (GAL), Neile McQueen, testified that it is in Child’s
best interests to terminate Father’s rights, as Child needs stability and Father
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 4 of 9 had “multiple opportunities to try to make those changes that are necessary to
provide that stable home, and [had not] done so.” Id. at 124.
[7] In April 2020, the trial court terminated Parents’ rights.
[8] Father now appeals.
Discussion and Decision [9] Father argues that DCS did not prove the statutory requirements for
termination by clear and convincing evidence. When reviewing the termination
of parental rights, we do not reweigh the evidence or judge witness credibility.
In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the
evidence and reasonable inferences that are most favorable to the judgment of
the trial court. Id. When a trial court has entered findings of fact and
conclusions of law, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. To determine whether a judgment terminating
parental rights is clearly erroneous, we review whether the evidence supports
the trial court’s findings and whether the findings support the judgment. In re
V.A.,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 21 2020, 9:14 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William Elliott Happel Curtis T. Hill, Jr. Thomasson, Thomasson, Long Attorney General & Guthrie, P.C. Abigail R. Recker Columbus, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the October 21, 2020 Parent-Child Relationship of: Court of Appeals Case No. K.D. (Minor Child) and 20A-JT-1034 S.B. (Father) Appeal from the S.B. (Father), Bartholomew Circuit Court The Honorable Appellant-Respondent, Kelly Benjamin, Judge v. The Honorable Heather Mollo, Magistrate Indiana Department of Child Trial Court Cause No. Services, 03C01-1904-JT-1831 Appellee-Petitioner
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 1 of 9 Case Summary [1] S.B. (“Father”) appeals the termination of his parental rights to K.D. (“Child”).
We affirm.
Facts and Procedural History [2] Father and N.D. (“Mother”) (together “Parents”) are the biological parents of
Child, born in November 2016. Mother has two older children from prior
relationships. Mother’s parental rights were also terminated, but she has not
appealed, so we limited our narrative to the facts relevant to Father.
[3] In December 2017, the Department of Child Services (DCS) received a report
that Mother was leaving Child with various relatives and abusing illegal
substances. A month later, DCS received another report that Mother was
homeless and abusing illegal substances. An Emergency Custody Order was
issued, and DCS removed Child from Mother’s care on January 18, 2018. The
next day, DCS filed a petition alleging Child was a Child in Need of Services
(CHINS). Child was placed with C.D., the father of one of his half-siblings.
Father’s whereabouts at the time were unknown. He was aware that Child had
been removed but did not come forward because there was a warrant for his
arrest for possession of methamphetamine and false informing. In April, Father
was arrested on the warrant, as well as for possession of methamphetamine,
resisting law enforcement, and false informing. He appeared in custody at the
CHINS initial hearing in May. In June, Father admitted Child was a CHINS
due to his incarceration and substance abuse. He also agreed to participate in Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 2 of 9 services, including a substance-abuse evaluation and inpatient treatment. While
incarcerated, Father participated in Fatherhood Engagement classes and
underwent substance-abuse and mental-health assessments through
Centerstone. In August, Father pled guilty to two counts of Level 6 felony
possession of methamphetamine, one count of Class B misdemeanor false
informing, and one count of Class A misdemeanor resisting law enforcement. A
month later, he was sentenced to probation and released on “house arrest.” Tr.
p. 28. He then began supervised visitation with Child. However, while on
probation, Father twice tested positive for methamphetamine—once in October
and once in November—and was arrested in late November for possession of a
syringe. In January 2019, Child’s permanency plan was changed to adoption
with a concurrent plan of reunification.
[4] Father remained in custody until March 2019, when the court in the criminal
case accepted his admission to violating probation and returned him again to
probation, with an order to successfully complete the Recovery Enables a Life
For Men (REALM) program, a six-month residential substance-abuse program.
On March 21, Father began the REALM program, where he was diagnosed
with a severe methamphetamine-use disorder. While at the REALM program,
Father had twice-weekly visits with Child, then two-and-a-half years old. Father
also participated in Fatherhood Engagement classes, where his therapist felt he
showed “insight.” Appellant’s App. Vol. II p. 15. Father acknowledged he was
in a cycle of incarceration, release, relapse, and then reincarceration. He also
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 3 of 9 stated that Mother added to his substance-abuse issue and that he would need
to stay away from her to maintain sobriety.
[5] On April 1, DCS filed a petition to terminate Parents’ rights. Shortly thereafter,
Father was informed of the termination petition at a Child and Family Team
meeting and was told that he should continue with the REALM program, that
DCS services would remain open to him, and that no changes would occur
unless a termination-of-rights order was issued. Family case manager Arielle
Beller “explained [the] expectations for [Father and] the importance of where
the case was in the timeframe for permanency.” Id. at 16. But on May 8, Father
left the REALM program without permission because he “wanted to use drugs”
and felt that Child “was gonna get taken no matter what” he did. Tr. pp. 32,
176. Leaving the REALM program “was considered an escape,” and therefore
the State filed a motion to revoke Father’s probation in the criminal case, and a
warrant was issued for his arrest. Appellant’s App. Vol. II p. 15. Later that
month, Father was arrested on the warrant.
[6] The termination trial occurred over two days in June and August 2019. Father
testified that he was still struggling with substance abuse but that he did not feel
his substance abuse impacted his parenting because when he’s on drugs he still
“pay[s] attention to Child,” is “loving,” and “take[s] care of him.” Tr. p. 33.
However, he said his incarcerations did have a negative impact on Child.
Child’s guardian ad litem (GAL), Neile McQueen, testified that it is in Child’s
best interests to terminate Father’s rights, as Child needs stability and Father
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 4 of 9 had “multiple opportunities to try to make those changes that are necessary to
provide that stable home, and [had not] done so.” Id. at 124.
[7] In April 2020, the trial court terminated Parents’ rights.
[8] Father now appeals.
Discussion and Decision [9] Father argues that DCS did not prove the statutory requirements for
termination by clear and convincing evidence. When reviewing the termination
of parental rights, we do not reweigh the evidence or judge witness credibility.
In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the
evidence and reasonable inferences that are most favorable to the judgment of
the trial court. Id. When a trial court has entered findings of fact and
conclusions of law, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. To determine whether a judgment terminating
parental rights is clearly erroneous, we review whether the evidence supports
the trial court’s findings and whether the findings support the judgment. In re
V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).
[10] A petition to terminate parental rights must allege, 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
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 5 of 9 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) 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 § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by clear
and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If 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).
I. Conditions Remedied [11] Father challenges the trial court’s conclusion that there is a reasonable
probability that the conditions resulting in Child’s removal and continued
placement outside the home will not be remedied. In determining whether the
conditions resulting in a child’s removal will not be remedied, the trial court
engages in a two-step analysis. First, the trial court must ascertain what
conditions led to the child’s placement and retention in foster care. In re K.T.K.,
989 N.E.2d at 1231. Second, the trial court must determine whether there is a
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 6 of 9 reasonable probability those conditions will not be remedied. Id. “The trial
court must consider a parent’s habitual pattern of conduct to determine whether
there is a substantial probability of future neglect or deprivation.” Id.
[12] Here, Child remained out of Father’s care because of his incarcerations and
substance abuse. Father now argues whether there is a reasonable probability
these conditions will be remedied “remains to be seen” because “DCS filed its
petition to terminate Father’s parental rights before the effectiveness of the
[substance abuse] treatment could be judged.” Appellant’s Br. p. 12. We
disagree. Over the nineteen months from the filing of the CHINS petition until
the termination hearing, Father made no progress toward providing Child a
safe and stable home. Father was incarcerated three times throughout the
proceedings due to his substance abuse. Within two months of being released,
Father tested positive twice for methamphetamine and was rearrested for
possession of a syringe. The following year, Father was given another
opportunity to work on his substance abuse through the REALM program.
After two months, despite knowing the termination hearing was imminent,
Father left the REALM program to do drugs. At the time of the termination
hearing, Father admitted he still struggled with substance abuse but said he did
not believe his substance abuse negatively affected his parenting, an attitude
that “strongly suggests” Father will not “have the necessary motivation to
change for the sake of [Child].” Appellant’s App. Vol. II p. 16.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 7 of 9 [13] As such, the trial court did not err when it concluded there is a reasonable
probability the conditions leading to Child’s removal will not be remedied.1
II. Best Interests [14] Father also challenges the trial court’s conclusion that termination is in the best
interests of Child. In determining the best interests of a child, the trial court
must look at the totality of the evidence. See In re A.B., 887 N.E.2d 158, 167-68
(Ind. Ct. App. 2008). The trial court must subordinate the interests of the
parents to those of the child. Id. at 168. Termination of a parent-child
relationship is proper where the child’s emotional and physical development is
threatened. In re K.T.K., 989 N.E.2d at 1235. A trial court need not wait until a
child is irreversibly harmed such that his or her physical, mental, or social
development is permanently impaired before terminating the parent-child
relationship. Id. Additionally, a child’s need for permanency is a “central
consideration” in determining the best interests of a child. Id.
[15] Father argues that termination is not in Child’s best interests because “[n]one of
the evidence presented at trial indicated that Father lacked the knowledge or
ability to safely and effectively care for [Child].” Appellant’s Br. p. 11. We
1 Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions resulting in Child’s removal will not be remedied, we need not address its alternate conclusion that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of Child. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires trial courts to find only one of the two requirements of subsection (b) has been established by clear and convincing evidence), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 8 of 9 disagree. Father has a severe methamphetamine-use disorder. Father admitted
he is in a cycle of being incarcerated, getting released, relapsing, and then
getting incarcerated again. As noted above, at no point in the nineteen months
before the termination hearing did Father demonstrate the ability to break this
cycle. Father was arrested three times throughout the CHINS proceedings and
quickly relapsed both times he was released from incarceration. And his belief
that he can safely parent while abusing substances suggests this cycle will
continue.
[16] Furthermore, Child is in a loving and stable home with his foster family, which
includes two of his half-siblings. Child, now almost four, has been with his
foster family for almost three years, and the foster family plans to adopt him.
McQueen, Child’s GAL, believes it is in Child’s best interests to terminate to
provide Child with stability. Father has not shown he can provide any stability.
As such, the trial court did not error when it concluded it is in Child’s best
interests to terminate the parent-child relationship.
[17] Affirmed.
Bailey, J., and Weissmann, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1034 | October 21, 2020 Page 9 of 9