MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 07 2020, 8:46 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Roberta L. Renbarger Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the August 7, 2020 Parent-Child Relationship of Court of Appeals Case No. K.K. (Minor Child) and M.K. 20A-JT-194 (Father) Appeal from the M.K. (Father), Allen Superior Court The Honorable Appellant-Respondent, Charles F. Pratt, Judge v. The Honorable Sherry A. Hartzler, Magistrate Indiana Department of Child Trial Court Cause No. Services, 02D08-1812-JT-443 Appellee-Petitioner
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 1 of 16 Case Summary [1] M.K. (“Father”) appeals the termination of his parental rights to K.K.
(“Child”). We affirm.
Facts and Procedural History [2] The facts that follow are taken primarily from the trial court’s findings of fact,
none of which Father challenges on appeal.1 Father and L.M. (“Mother”)
(collectively, “Parents”) are the biological parents of Child, born in 2013.
Mother’s parental rights were also terminated; however, she does not
participate in this appeal and therefore we limit our narrative to the facts
relevant to Father.
[3] On March 15, 2015, the Department of Child Services (DCS) received a report
that Father and Child were being evicted from their house and that there were
ongoing medical issues with Child. Family Case Manager (FCM) Sarah Corley
was assigned to conduct an assessment and spoke to Father, who said that he
was being evicted and that Child was staying at his mother’s (“Grandmother”)
house. See Tr. Vol. II pp. 149-50. Father stated that Child had been staying at
Grandmother’s house for “approximately two weeks.” Id. at 150. During that
time, Child was “sick with a virus and [had been] in and out of the hospital.”
1 Because Father does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 2 of 16 Id. FCM Corley asked Father about drug use, and he responded that “he does
not use drugs but he does smoke marijuana every once in a while.” Id. at 152.
FCM Corley had Father take a drug screen, which later returned positive for
marijuana. DCS received authorization to remove Child and formally place her
in Grandmother’s care. See id. at 150.
[4] In April, DCS filed a petition alleging that Child was a Child in Need of
Services (CHINS). On April 15, an initial hearing on the CHINS petition was
held, and Father denied the allegations. Then, on May 11, DCS filed an
amended CHINS petition, adding an allegation that Father had smoked
marijuana at a party in March 2015. An initial hearing on the amended petition
was held, and Father admitted that Child was a CHINS. That same day, the
court proceeded to a dispositional hearing and ordered Father to participate in
services, including completing a “Diagnostic Assessment” and a substance-
abuse assessment, home-based case management, random drug screens, and
supervised visitation. Ex. 6.
[5] For the next year, Father did not participate in services. In May 2016, he
completed a substance-abuse assessment. It was recommended that Father be
referred for substance-abuse treatment if he tested positive for drugs. Thereafter,
Father tested positive for marijuana “several times” and was referred for
substance-abuse treatment. Tr. Vol. II p. 183. However, Father was “adamant
[that] he was not going to do substance abuse treatment.” Id. After that, Father
stopped maintaining contact with DCS and did not participate in services until
the trial court changed Child’s permanency plan from reunification to
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 3 of 16 termination in December 2018. At that point, despite having the court’s
authorization to file a termination petition, DCS re-referred Father to various
service providers.
[6] In April 2019, DCS filed a petition to terminate Father’s parental rights to
Child. While the termination petition was pending, Father participated in some
services, but by the beginning of September he had, once again, stopped
participating in services and had no-showed multiple visits with Child.
[7] On September 23, 2019, the termination fact-finding hearing began. Father did
not appear. Mother, who by then had moved to Georgia and indicated that she
would sign a consent to Child’s adoption, appeared telephonically. See Tr. Vol.
II pp. 5-6. Addictions Counselor Paul Bruns testified that he received a referral
to complete Father’s substance-abuse assessment in February 2019. Bruns said
that following the assessment, he worked with Father for ten weeks in
individual sessions to establish “boundaries against cannabis which was
[Father’s] drug of choice.” Id. at 35. Bruns stated that Father was discharged
successfully for completing ten weeks of drug screens (which were all negative)
and for attending individual sessions on a regular basis. See id. Bruns explained,
however, that Father told him several times that his long-term plan was not to
abstain from marijuana. See id. at 38. Bruns said that he had concerns about
Father using marijuana going forward and did not believe that Father benefitted
from the services he provided. See id. Bruns testified that Father did not take his
individual sessions seriously and was “very adversarial and very rejecting of any
kind of advice and counsel about how to proceed with his life.” Id. at 40.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 4 of 16 [8] Dr. David Lombard testified that he received a referral to complete a
psychological assessment of Father in August 2019. Dr. Lombard said that
Father disclosed that he had “a history of conflicts” that “get escalated quite
quickly . . . when the environment throws something at him that is unexpected
or he doesn’t like.” Id. at 15. Dr. Lombard stated that he recommended that
Father continue with substance-abuse treatment and engage in individual
counseling to “consider looking at his pattern of volatility with relationships
and [his] quickness to anger and see if there’s ways to improve that.” Id. at 15-
16. Dr. Lombard explained that Father’s strong reactions were “really kind of
bordering on this could be harmful to children but it’s not enough that [he]
made a specific recommendation to get parenting training or something like
that.” Id. at 27.
[9] Therapist Melissa Collingsworth testified that she received a referral to provide
family therapy for Father and Child in July 2019. Therapist Collingsworth said
that she provided one family-therapy session for Father and Child at the end of
August, but since then, Father had “no showed” three scheduled sessions. Id. at
74. Therapist Collingsworth said that at the family-therapy session she
facilitated, Child cried and “was angry about a previous home visit where
[Father] had fallen asleep.” Id. at 76. Therapist Collingsworth also stated that
Child was afraid that Grandmother “would die” if Father and Grandmother
kept arguing. Id. Therapist Collingsworth said that Father’s response to Child
crying was to yell back and “curse a lot,” and that this type of reaction
negatively impacted Father’s relationship with Child. Id. at 77. Case manager
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 5 of 16 Aretha Green testified that she received a referral to provide supervised
visitation for Father in April 2019. Green said that from the end of April until
the first week of September, Father regularly attended visits but then
“discontinued communication with [her].” Id. at 80. Green stated that since
then, Father had missed three visits in a row and had been discharged from her
services. See id. at 82. Green said that she reached out to Father, sending him a
text message each week, but that she had not heard back from him. See id. at 81-
82. Green also testified that she was present at a child-family team meeting in
June 2019, where Father became “very upset,” was “yelling using profanity,”
and eventually just “flat out” left the meeting. Id. at 85-86.
[10] Therapist Paige Zehr testified that she received a referral to provide individual
therapy to Child in June 2019. Therapist Zehr said that she diagnosed Child as
having an adjustment disorder and was working on trying to determine whether
Child also had an oppositional-defiant disorder. Id. at 56-57. Therapist Zehr
stated that Child told her that visits with Father “don’t go well that he never
does anything with her that he yells at her [and] that he’s cussed at her.” Id. at
57. Therapist Zehr testified that Child “needs a lot of support” and stability and
that she recommended Child continue in her current placement with
Grandmother. Id. at 58. Grandmother testified that although Child was
formally placed with her in April 2015, “before that [Child] was with [her]
probably 90 percent of the time.” Id. at 89. Grandmother said that if Father’s
parental rights were terminated, she wanted to adopt Child. See id. at 90.
Grandmother had concerns with Father’s ability to care for Child because of
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 6 of 16 “[h]is anger issues his ups and downs and his being able to provide.” Id.
Regarding Father’s ability to provide, Grandmother said that Father had a
history of asking her for money or food and that he had done this as recently as
the day before the termination hearing. As for Father’s anger issues,
Grandmother explained that when Father is angry, he acts “[o]ut of control,”
“[s]creaming hollering getting in your face,” and uses vulgar language. Id. at 96,
104. After Grandmother finished testifying, the trial court continued the
termination hearing.
[11] The next day, September 24, the termination hearing resumed. Once again,
Father failed to appear. FCM Corley testified that DCS removed Child from
Father’s care “because of the eviction and medical issues.” FCM Corley said
that DCS removed Child and placed her with Grandmother “to ensure that
[Child] was safe and continue[d] to have [] proper medical care.” Id. at 156.
FCM Ziaria Thomas testified that she was the family’s case manager from May
2016 to May 2019. FCM Thomas said that during that time Father “was up and
down . . . with his services.” Id. at 166. FCM Thomas explained that initially
“[Father] was not doing any services but [he] was willing to communicate with
[DCS] and then [Father] would fall off the face of the earth and [DCS] wouldn’t
hear from [Father] and then [Father] would either reach out or say no one has
spoke[n] to him.” Id. at 166. FCM Thomas stated that “towards the tail end” of
her time as the family’s case manager, Father made some progress in services.
Id. at 180. FCM Thomas said that “once the permanency plan was switched to
change of custody or TPR with adoption that kind of lit a fire under [Father]
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 7 of 16 and [he] was willing to be more engaged.” Id. FCM Thomas testified that, for
example, Father initially “was adamant that he wasn’t going to do any other
services or dance around like a puppet for [DCS] is what he would often say.”
Id. at 183. FCM Thomas said that then, “finally when we got to that TPR . . .
[Father] was willing to do another substance abuse assessment willing to do
drug screens and willing to do substance abuse treatment.” Id. FCM Thomas
also stated that although Father participated in visits, there was “often cussing
and yelling,” so “they may not have been purposeful or meaningful visits.” Id.
at 185.
[12] At the end of the second day of the termination hearing, after Mother changed
her mind about consenting to Child’s adoption and the parties requested
additional time to present evidence as to her, the trial court engaged in the
following colloquy with Father’s attorney:
Court: --okay so this is the—this is the Court’s order . . . we’ll reconvene at 2 o’clock on October the 1st 2019 thank you.
*****
Court: And [Father’s attorney] you have contact with your client?
[Father’s attorney]: I have a telephone number.
Court: Okay you[’ll] let him know about the October 1st date?
[Father’s attorney]: Yes.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 8 of 16 Court: Okay.
[FCM Joshua Meyer]: I can text him too he probably won’t respond but I can contact him too.
Court: All right [Father’s attorney] if you would let your client know [FCM Meyer will] send a text but outside of that given the short amount of time I think that is best as we can do for notice do we agree?
Id. at 202-03.
[13] On October 1, the termination hearing resumed. Once again, Father did not
appear. Before the parties began presenting evidence, Father’s attorney told the
trial court that she had filed a “motion to reschedule” “because [she] didn’t get
a hold of [Father] until—[she] tried earlier but didn’t get a hold of him until
yesterday.” Id. at 204. Father’s attorney asserted that Father had started a new
job and that he would lose his job if he took a day off. Father’s attorney asked
that the trial court reschedule “to get the requisite 10-days’ notice.” Id. The
court explained:
[T]he issue here is that we’ve had two days of trial and [Father’s] failed to appear on both days this hearing was scheduled at the request of parents’ counsel to provide additional time to get this matter done. . . . The Motion to Continue is denied and we’re going to go forward.
Id. at 208.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 9 of 16 [14] Mother testified that her and Father “had a very violent relationship.” Id. at
225. Mother said that she agreed with the substance-abuse counselors “that
[Father] will use after the CHINS case is closed . . . because [she had] watched
[Father] smoke weed in front of [Child].” Id. at 229. Mother stated that she felt
to remove Child “from [Grandmother] would be extremely un-beneficial.” Id.
at 236. Mother explained that Child had been with Grandmother for the “past
four years a structure that she knows people that she knows and she loves and
she’s very comfortable with,” and that removing “her from that to put her in a
whole different world . . . that would hurt her more than anything.” Id.
[15] FCM Meyer testified that he took over the case in May 2019. FCM Meyer said
the last time he had contact with Father was on July 25, 2019, and that since
then, he had tried to contact Father “seven times” and Father “hasn’t returned
any calls,” voicemails, or texts. Id. at 241. FCM Meyer stated that the last visit
Father had with Child was in early September 2019 and that since then, Father
had been discharged from his visitation supervisor “after not showing [for] three
straight visits.” Id. at 243. FCM Meyer testified that DCS’s plan was for Child
to be adopted by Grandmother and that he agreed with this plan because Child
had been with Grandmother “over half of her life . . . [and] that’s all she really
knows.” Id. at 248. Guardian ad litem (GAL) Michael Harmeyer testified that
he was appointed to serve as Child’s GAL in May 2015. GAL Harmeyer
believed that it is in Child’s best interests for the court to terminate Father’s
parental rights. GAL Harmeyer explained that he had concerns with Father’s
financial instability and that Child’s best interests are served “by a continuation
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 10 of 16 of the stability that she’s found in the home of [Grandmother] over the last four
years.” Tr. Vol. III p. 26. In December 2019, the trial court issued its order
terminating Father’s parental rights.
[16] Father now appeals.
Discussion and Decision [17] Father makes two arguments on appeal. First, Father argues that his due-
process rights were violated when he did not receive ten-day written notice that
the third day of the termination hearing had been scheduled for October 1.
Second, he contends that the evidence is insufficient to support the trial court’s
order terminating his parental rights to Child.
I. Due Process [18] First, Father argues that his “due process rights to notice and an opportunity to
defend himself, were violated by the actions of the Court, in rescheduling the
hearing date, at the late date of September 24, 2019, and not requiring DCS to
provide written notice of the rescheduled date to Father.” Appellant’s Br. p. 14.
[19] When the State seeks to terminate the parent-child relationship, it must do so in
a manner that meets the requirements of due process. Hite v. Vanderburgh Cty.
Office of Family & Children, 845 N.E.2d 175, 181 (Ind. Ct. App. 2006). Due-
process in parental-rights cases involves the balancing of three factors: (1) the
private interests affected by the proceeding; (2) the risk of error created by the
State’s chosen procedure; and (3) the countervailing government interest
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 11 of 16 supporting use of the challenged procedure. Id. There is no doubt that Father’s
private interest in his parental relationship with Child is substantial. See id.
Likewise, the government’s countervailing interest in protecting the welfare of
children is also substantial. See id. Therefore, our task is to determine the risk of
error created by the trial court’s chosen method as to notice for the third day of
the termination hearing.
[20] Here, it is undisputed that Father received notice of the first two days of the
termination hearing, September 23 and 24, yet chose not to appear. On the
second day of the termination hearing, September 24, the trial court scheduled a
third day of the termination hearing for October 1, after Mother changed her
mind about consenting to adoption and the parties requested additional time to
complete the matter. Father’s attorney agreed to October 1 and told the trial
court that she would contact Father, given the short amount of time. See Tr.
Vol. II pp. 202-03. Despite earlier attempts, Father’s attorney was not able to
get in contact with Father until the day before the termination hearing was set
to resume. First, although notice was not given ten days before and was not in
written form, Father did have notice of the third day of the hearing. Next, it is
undisputed that Father failed to appear for the first two days of the termination
hearing, despite having statutorily adequate notice. Third, Father’s attorney
accepted October 1 as the date for the third day of the termination hearing.
Finally, Father was represented by counsel throughout all three days of the
termination hearing, during which his attorney cross-examined witnesses and
objected to the admission of evidence. For all of these reasons, we find that the
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 12 of 16 risk of error created by the trial court’s chosen method as to notice was
minimal.
II. Sufficiency [21] Next, Father contends that the evidence is insufficient to support the trial
court’s order terminating his parental rights to Child. 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).
[22] 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 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.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 13 of 16 (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).
[23] Father challenges the trial court’s conclusion that there is a reasonable
probability that the conditions resulting in Child’s removal will not be
remedied. In determining whether such a probability exists, 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 determines whether there is a
reasonable probability that those conditions will not be remedied. Id. “The trial
court must consider a parent’s habitual pattern of conduct to determine whether
there is substantial probability of future neglect or deprivation.” Id. The trial
court has discretion to weigh a parent’s prior history more heavily than efforts
made only shortly before termination, and the court may find that a parent’s
past behavior is the best predictor of their future behavior. In re A.W., 62 N.E.3d
1267, 1273 (Ind. Ct. App. 2016).
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 14 of 16 [24] Here, even after four-and-a-half-years, Father has failed to demonstrate that he
was any closer to providing Child a safe, stable home than he was at the
beginning of the CHINS case in March 2015. The trial court’s unchallenged
findings on this issue support its conclusion that there is a reasonable
probability that the conditions resulting in Child’s removal and retention in
foster care will not be remedied. See, e.g., In re E.M., 4 N.E.3d 636, 644 (Ind.
2014) (findings regarding father’s non-compliance with services supported trial
court’s conclusion that conditions resulting in children’s removal from father’s
care would not be remedied). That is, the trial court found:
23. [T]hat Father did not maintain contact with [DCS] and would not submit to drug screens with the case manager, again engaging in manipulation and confrontation, rather than engage in reunification or rehabilitative services.
35. [T]hat it was not until the Court approved a plan for termination of parental rights, that Father made any indication that he would participate in services. However, even upon his participation, it appeared that he refused to appropriately engage and therefore did not benefit. Further efforts were put into place such as family therapy, for which Father failed to follow through.
Appellant’s App. Vol. II pp. 13, 15. Moreover, the trial court found that Father
routinely asks Grandmother for help with money or food. Id. at 14 (Finding
28). Accordingly, the trial court did not err when it concluded that there is a
Court of Appeals of Indiana | Memorandum Decision 20A-JT-194 | August 7, 2020 Page 15 of 16 reasonable probability that the conditions resulting in Child’s removal and
continued placement outside the home will not be remedied.2
[25] Affirmed.
May, J., and Robb, J., concur.
2 Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that resulted 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 the trial court 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-194 | August 7, 2020 Page 16 of 16