Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 16 2014, 9:56 am 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:
ROBERT LEIRER JUSTICE GREGORY F. ZOELLER Logansport, Indiana Attorney General of Indiana
ROBERT J. HENKE Deputy Attorney General ABIGAIL R. MILLER Certified Legal Intern Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination of the Parent-Child ) Relationship of K.B., Minor Child, and J.B., Father, ) ) J.B., ) ) Appellant-Respondent, ) ) vs. ) No. 09A02-1404-JT-247 ) INDIANA DEPARTMENT OF CHILD SERVICES, ) ) Appellee-Petitioner. )
APPEAL FROM THE CASS SUPERIOR COURT The Honorable Richard A. Maughmer, Special Judge Cause No. 09D02-1205-JT-33
December 16, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge J.B. (“Father”) appeals the juvenile court’s order terminating his parental rights to
his child, K.B (“Child”). He raises several issues on appeal, which we consolidate and
restate as: whether sufficient evidence was presented to support the termination of Father’s
parental rights.
We affirm.
FACTS AND PROCEDURAL HISTORY
On January 12, 2011, Child was born to Father and A.H. (“Mother”).1 Because of
Mother’s drug abuse during her pregnancy, Child’s urine and meconium were tested for
the presence of drugs. The results of the test showed that Child’s urine was positive for
benzodiazepines and Child’s meconium was positive for opiates and THC. The local Cass
County office of the Indiana Department of Child Services (“DCS”) got involved, and a
Child in Need of Services (“CHINS”) petition was filed on January 24, 2011. The petition
alleged that both parents had a substance abuse problem which impaired their ability to
care for Child. DCS was granted custody of Child, and after being dismissed from the
hospital, Child was placed in relative foster care. On May 4, 2011, the juvenile court
adjudicated Child to be a CHINS, and a dispositional decree was entered, ordering Father
to, among other things: (1) obtain and maintain suitable housing and a source of income;
(2) submit to random drug screens; (3) submit to a psychological evaluation; (4) participate
in home-based counseling; (5) submit to a substance abuse assessment and follow all
recommendations; and (6) participate in parenting time with Child. On May 8, 2012, DCS
1 Mother died while this case was pending. We, therefore, only refer to the facts pertinent to Father’s appeal.
2 filed a petition to terminate Father’s parental rights. Evidentiary hearings were held on
September 26, 2013, January 22, 2014, January 23, 2014, and February 27, 2014.
During the hearing dates, the following testimony and evidence was presented.
When DCS filed the CHINS petition, both Father and Mother were addicted to drugs. Prior
to Child’s birth, Father had been hospitalized twice in 2010 for drug overdoses, on August
12, 2010 and November 20, 2010. As part of the CHINS case, Father was ordered to submit
to random drug screens. Father tested positive for hydrocodone and methadone on
February 28, 2011 and for heroin and morphine on May 4, 2011. Father testified that he
continued to use morphine throughout the beginning of the CHINS case until June 15,
2011, when Mother went to a rehabilitation center. Tr. Vol. III at 217. Around the end of
2011 and the beginning of 2012, Father used Spice. Both Mother and Father relapsed at
this time, and on February 12, 2012, Mother passed away.2 On February 15, 2012, Father
tested positive for alcohol and Spice. On March 13, 2012, he tested positive for alcohol
and methylone, also known as bath salts. Throughout most of the rest of 2012, no drug
screens were done. Beginning in 2013, a new drug screen coordinator began administering
Father’s drug screens. Father tested positive for alcohol on April 17, 2013 and again on
May 22, 2013. Father did not test positive for anything from that date forward but he
missed ten drug screens in 2013, and the last drug screen administered to him was on
August 29, 2013.
2 It is unclear from the record the exact cause of Mother’s death. There was, however, testimony that Father and Mother were smoking Spice and drinking alcohol that night. Tr. Vol. I at 154.
3 Father attended Narcotics Anonymous (“NA”) meetings as a condition of home
detention, but he did not attend consistently and stopped attending around May or June
2013. At the end of 2013, Father began attending NA meetings again, but at the time of
the hearings, he did not yet have a NA sponsor. Father testified that he was no longer
addicted to drugs, but service providers found his continued use of alcohol to be a major
concern. Father completed a substance abuse assessment with Deborah Carithers
(“Carithers”) from Four County Counseling. He was not forthcoming with Carithers about
his drug use, but she learned from DCS that he participated in intravenous drug use. Father
was referred to Four County Counseling for intensive outpatient treatment, which is
normally sixty hours, but his treatment was modified to eighty hours. Father completed a
total of sixty-six hours, but Carithers testified that she did not believe that he had benefited
greatly from the treatment. Tr. Vol. I at 161-62. Father quit going to the group meetings
because of conflicts with his work schedule, although there were other sessions to
accommodate his work schedule.
In December 2011, Father was referred to Doug Essex (“Essex”), an addictions
counselor with Wabash Valley Alliance, and Essex diagnosed Father with opiate
dependence and alcohol abuse. Individual substance abuse counseling was recommended,
and Father started individual counseling on January 3, 2012. In August and September
2012, Father was going to be successfully discharged from Wabash Valley Alliance, but
he cancelled his last appointment and never went back. Because Father never met with
Essex in October or November 2012, he was not successfully discharged. Father testified
4 that he did not complete treatment due to “work complications” and that he never
completed any drug treatment offered to him by DCS. Id. at 35.
Prior to the CHINS case, father pleaded guilty to public intoxication in 2006. On
March 2, 2011, Father was arrested and charged with Class B felony dealing heroin. On
July 23, 2013, Father was arrested for operating while intoxicated as a Class A
misdemeanor. In September 2013, he was arrested for violating a condition of his bond.
On November 8, 2013, Father pleaded guilty to possession of a controlled substance as a
Class D felony, and his Class B felony dealing in heroin charge was dismissed. Father was
incarcerated from September 2013 until December 9, 2013, and upon his release from jail,
he began serving six months home detention for his guilty plea.
On January 27, 2011, Father was referred for home-based services, and Jacqueline
Petrie (“Petrie”) was assigned as his home-based case manager. She worked with Father
on transportation, hygiene and grooming supplies, and parenting and supervision. By the
time of the evidentiary hearings, Father had stopped participating in home-based services.
Father was also offered visitation services and was informed of the attendance
policies prior to beginning visitations with Child. Father was supposed to confirm his
visitations in a timely manner, and if he failed to do so, the visitation would be cancelled.
Father often failed to confirm his appointments in time and missed multiple visitation
appointments. In all, Father missed 79 visitations out of the 285 offered to him from 2011
through 2013. Beginning February 17, 2011, visitations were supervised and remained so
until December 2011. During this time, Petrie was concerned because the parents were not
attending visitations and that Father did not participate as much as Mother did. In January
5 2012, Child started having overnights with Mother and Father; however, after Mother
passed away in February 2012, visitations stopped for a short time to give Father “time to
regroup.” Tr. Vol. I. at 90. When visitations resumed, they were held at DCS and were
fully supervised. Father missed all of his scheduled appointments in February, several in
March, and most in April 2012.
The visitations were transitioned to Father’s apartment starting in August 2012, and
weekend visits were started in September 2012. In October 2012, visitations were removed
from Father’s apartment due to the lack of cleanliness of the apartment and the hazards to
Child that were present, such as electrical cords, lots of clutter, and items that posed a
climbing danger. After Father remedied the issues, visitations were resumed at his
apartment. Father became incarcerated in August 2013 and did not see Child until October
2013 when Child visited Father in jail. At that visit, Child seemed uncomfortable and got
under the table and barked like a dog. Father’s visits with Child resumed in December
2013 after his release from jail, but from that time until the evidentiary hearings, Father
only had one visitation per week for one hour at the DCS office. He missed one
appointment in December and three or four visits in January 2014.
When the services were first started, Father was informed that it was not the service
providers’ job to care for Child, but that they were just there to observe. However, Petrie
testified that, throughout the case, one concern was that Father relied too much on the
caseworkers to watch Child during visitations. Id. at 97. Father would also leave the
apartment and just assume that the caseworker would watch Child. Father was often
unprepared for visits when the service providers arrived and would have to scramble to put
6 dangerous items away. Since Mother’s death in February 2012, Father has not had any
unsupervised visitations with Child. He was never able to have a trial home visit or
overnight with Child. The service providers testified that they felt that there were safety
issues and concerns with leaving Child alone with Father in his apartment. Tr. Vol. II. at
21, 102-03.
Prior to Child’s birth, Father and Mother lived in Logansport with Mother’s other
son.3 On March 10, 2011, they were evicted from that residence, and they then lived with
various relatives before moving to an apartment in Lafayette. At the time of the first
hearing date on the termination petition in September 2013, Father was incarcerated in the
Cass County Jail. He was released in December 2013 and moved to his parents’ home to
serve his home detention. Throughout the case, the cleanliness and safety of Father’s home
were issues. Some safety concerns stemmed from the clutter in Father’s home, and one
service provider was worried about the safety of the home due to mold in the bathroom,
hair everywhere, and razors out on the counter. There were many things stacked around
the home that posed safety concerns for a toddler. When Father began living with his
parents, there were also concerns about clutter in the grandparents’ home. At the start of
the case, Father’s mother would not allow DCS to inspect the home. When the court
appointed special advocate (“CASA”) and the DCS case manager did inspect it, they found
it was very cluttered and did not pass inspection. Additionally, Father’s brother also lived
at the home, but never underwent the background check requested by DCS in 2011.
3 This child was also removed from the home at the same time Child was.
7 When the CHINS case began, Father was not employed. He was attending Ivy Tech
Community College, but never completed his degree. He obtained employment with CTI
Staffing at Wabash National in 2011, but lost that job when he was arrested in November
2011. He then became employed at Kirby Risk’s machine shop in 2012, but lost that job
due to tardiness. Father was later employed at Indiana Packers through a staffing agency
from July 11, 2012 through October 31, 2012 when he lost his job due to tardiness. In
April 2013, he became employed at Teleservices Direct and was employed there until
September 5, 2013 when he became incarcerated. When Father was unemployed, he
supported himself with food stamps and through the help of his parents and grandparents.
Father remained unemployed at the time of the termination hearing.
At the time of the termination hearing, Child, who was three years old, had been
removed from Father for Child’s entire life and had been in relative foster care since being
released from the hospital after birth. DCS’s plan for Child was adoption. The DCS case
manager testified that Child needs permanency and that termination was in Child’s best
interests. Tr. Vol. III at 117. The CASA and guardian ad litem (“GAL”) also testified that
Child needs permanency and that termination was in the best interests of Child. On March
13, 2014, the juvenile court issued its order terminating Father’s parental rights. Father
now appeals.
DISCUSSION AND DECISION
We begin our review by acknowledging that this court has long had a highly
deferential standard of review in cases concerning the termination of parental rights. In re
B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When reviewing a termination
8 of parental rights case, we will not reweigh the evidence or judge the credibility of the
witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead,
we consider only the evidence and reasonable inferences that are most favorable to the
judgment. Id. Moreover, in deference to the trial court’s unique position to assess the
evidence, we will set aside the court’s judgment terminating a parent-child relationship
only if it is clearly erroneous. In re B.J., 879 N.E.2d at 14.
Here, in terminating Father’s parental rights to Child, the juvenile court entered
specific findings and conclusions. When a trial court’s judgment contains specific findings
of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake
Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine
whether the evidence supports the findings, and second, we determine whether the findings
support the judgment. Id. “Findings are clearly erroneous only when the record contains
no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d
98, 102 (Ind. 1996). If the evidence and inferences support the trial court’s decision, we
must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.
2013), trans. denied.
The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution. In re C.G., 954
N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are not absolute and must
be subordinated to the child’s interests when determining the proper disposition of a
petition to terminate parental rights. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013).
In addition, although the right to raise one’s own child should not be terminated solely
9 because there is a better home available for the child, parental rights may be terminated
when a parent is unable or unwilling to meet his or her parental responsibilities. Id.
Before an involuntary termination of parental rights may occur, the State is required
to allege and prove, 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.
(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). The State’s burden of proof for establishing these allegations
in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d
1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if the court finds
that the allegations in a petition described in section 4 of this chapter are true, the court
shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).
Father argues that DCS failed to prove the required elements for termination by
sufficient evidence. Father alleges that DCS failed to present sufficient evidence to prove
that the conditions which resulted in Child being removed will not be remedied or that the
continuation of the parent-child relationship poses a threat to Child. He also asserts that
insufficient evidence was presented to prove that it was in the best interests of Child that
10 his parental rights be terminated. Father additionally contends that several of the juvenile
court’s findings are not supported by the evidence.
As to Father’s argument that several findings are not supported by the evidence, we
note that some of the findings he challenges are in fact conclusions, which will be addressed
below. Father’s remaining contentions that the findings are not supported by the evidence
are actually challenges to the weight the juvenile court afforded the evidence presented.
He is, therefore, requesting this court to reweigh the evidence, which we cannot do. In re
D.D., 804 N.E.2d at 265.
Father’s next contention is that DCS did not prove by clear and convincing evidence
that the conditions that resulted in Child’s removal would not be remedied. He alleges that
the reason for Child’s removal was Mother’s drug use, and because she has since died, the
reasons for removal have been remedied. He further argues that the conditions of his home
and supervision of Child were not conditions that led to removal of Child because Child
was immediately placed in foster care after being released from the hospital.
When a juvenile court decides the issue whether the conditions that led to a child’s
removal and continued placement outside the home would be remedied, the juvenile court
must assess a parent’s fitness to care for his or her child at the time of the termination
hearing and take into consideration evidence of changed conditions. In re D.D., 804
N.E.2d at 266. Additionally, a juvenile court may consider not only the basis for a child’s
initial removal from the parent’s care, but also any reasons for a child’s continued
placement away from the parent. In re D.K., 968 N.E.2d 792, 798 (Ind. Ct. App. 2012),
trans. denied. The court may also consider the parent’s habitual patterns of conduct, as
11 well as 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. Id. The
court may also consider any services offered by the DCS to the parent and the parent’s
response to those services. Id. Parental rights may be terminated when parties are
unwilling or unable to meet their parental responsibilities. Id. at 265.
The evidence showed that Child was removed from Father’s care at birth due to the
fact that Mother abused drugs during her pregnancy and Child tested positive for
benzodiazepines, opiates, and THC. The CHINS petition also alleged that both parents
had a substance abuse problem which impaired their ability to care for Child. Therefore,
Child was not removed solely on the basis of Mother’s drug abuse. Further, the statute
focuses not only on the initial reason for removal of a child when determining whether
parental rights should be terminated, but also looks to the reasons for continued placement
outside the home. I.C. § 31-35-2-4(b)(2)(B). Other evidence showed that Father tested
positive for hydrocodone and methadone on February 28, 2011 and for heroin and
morphine on May 4, 2011. He testified that he continued to use morphine throughout the
beginning of the CHINS case until June 15, 2011. Tr. Vol. III at 217. Father tested positive
for alcohol and Spice on February 15, 2012, and for alcohol and bath salts on March 13,
2012. Throughout most of the rest of 2012, no drug screens were done. Father tested
positive for alcohol on April 17, 2013 and again on May 22, 2013. Although Father did
not test positive for any substances since May 22, 2013, he missed ten drug screens in 2013,
and the last drug screen administered to him was on August 29, 2013. Father never
completed a substance abuse program at the time of the termination hearing, and he failed
12 to consistently take drug screens as ordered by the juvenile court. Both of Father’s
addiction counselors testified that Father’s use of alcohol signified that he still had a
problem and that he needed to abstain from all substances to be drug free. Tr. Vol. I at 167,
190-91.
During the CHINS case, Father was incarcerated several times – all for drug and
alcohol related offenses. Father was arrested and charged with Class B felony dealing
heroin on March 2, 2011 and for Class A misdemeanor operating while intoxicated on July
23, 2013. In September 2013, he was arrested for violating a condition of his bond. Father
pleaded guilty to possession of a controlled substance as a Class D felony in his dealing in
heroin case and was incarcerated from September 2013 until December 9, 2013. At the
time of the termination hearing, he was serving six months home detention as a result of
his guilty plea.
Although Father contends he was not offered any parenting classes, he testified that
he was offered home-based services and that those services included parenting classes. Tr.
Vol. III at 205. There was also evidence that Father was given an opportunity to participate
in parenting classes when Mother was alive, but that he did not participate in those classes.
Tr. Vol. I at 118. At some point during the proceedings, one of the service providers
stopped providing services other than visitation services to Father due to his lack of
participation. Tr. Vol. III at 36. Additionally, although Father obtained employment during
a portion of the proceedings, he failed to maintain the employment for long periods of time
due to either the inability to be on time or his criminal activity.
13 As for visitations, the evidence showed that Father often failed to confirm his
appointments in time and missed multiple visitation appointments; in all, Father missed 79
visitations out of the 285 offered to him from 2011 through 2013. When the visitations did
occur, Father relied too much on the caseworkers to watch Child during visitations
although he had been informed that it was not the service providers’ job to care for Child,
and he would leave the apartment and just assume that the caseworker would watch Child.
Since Mother’s death in February 2012, Father has not had any unsupervised visitations
with Child, and the service providers felt that there were safety issues and concerns with
leaving Child alone with Father in his apartment. Throughout the case, the cleanliness and
safety of Father’s home were issues. Some safety concerns stemmed from the clutter in
Father’s home, and service providers worried about the safety of the home due to the many
things stacked around the home that posed safety concerns for a toddler. When Father
began living with his parents, there were also concerns about clutter in the grandparents’
home. When the CASA and the DCS case manager inspected the home, they found it did
not pass inspection due to the excessive clutter. Additionally, Father’s brother also lived
at the home, but never underwent the background check requested by DCS in 2011. Based
on the evidence presented, we conclude that the juvenile court did not err in finding that
there was a reasonable probability that the conditions that resulted in the removal and the
reasons for continued placement of Child outside Father’s home would not be remedied.
To the extent that Father contends that DCS failed to prove by clear and convincing
evidence that there was a reasonable probability that the continuation of the parent-child
relationship posed a threat to the well-being of Child, we need not address such argument.
14 Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the
termination of parental rights, the juvenile court need only find that one of the three
requirements of subsection (b)(2)(B) has been established by clear and convincing
evidence. A.D.S., 987 N.E.2d at 1156. Therefore, as we have already determined that
sufficient evidence supported the conclusion that the conditions that resulted in the removal
of Child from Father’s care would not be remedied, we will not address any argument as
to whether sufficient evidence supported the conclusion that the continuation of the parent-
child relationship posed a threat to the well-being of Child.
Father’s final argument is that insufficient evidence was presented to prove that
termination was in the best interests of Child. In determining what is in the best interests
of the child, the trial court is required to look at the totality of the evidence. In re A.K., 924
N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re D.D., 804 N.E.2d at 267), trans.
dismissed. In doing so, the trial court must subordinate the interests of the parents to those
of the child involved. Id. Termination of a parent-child relationship is proper where the
child’s emotional and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d
927, 930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the child
is irreversibly harmed such that his physical, mental, and social development is
permanently impaired before terminating the parent-child relationship. Id. Additionally,
a child’s need for permanency is an important consideration in determining the best
interests of a child, and the testimony of the service providers may support a finding that
termination is in the child’s best interests. Id. (citing McBride v. Monroe Cnty. Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).
15 The evidence at the termination hearing showed that Child had been removed from
Father’s care for Child’s entire life and had never resided in Father’s home. While Mother
was still alive, she was the primary caregiver during visitations. Since she passed away,
Father has not had any unsupervised visitations with Child. The service providers never
felt that Child was safe to be alone with Father due to the safety issues in his apartment and
his reliance on the caseworkers to watch Child during visitations. Father was given three
years to reunify with Child, but he failed to consistently visit with Child, maintain stable
employment and safe housing, refrain from criminal behavior, complete a substance abuse
program, comply with all of his drug screens, and consistently participate in home-based
services. The DCS case manager, CASA, and GAL all testified that Child needed
permanency and that termination was in Child’s best interests. Based on the evidence
presented, we conclude that sufficient evidence was presented to prove that termination of
Father’s parental rights was in the best interests of Child.
We will reverse a termination of parental rights “only upon a showing of ‘clear
error’--that which leaves us with a definite and firm conviction that a mistake has been
made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting In re Egly, 592
N.E.2d 1232, 1235 (Ind. 1992)). Based on the record before us, we cannot say that the
juvenile court’s termination of Father’s parental rights to Child was clearly erroneous. We
therefore affirm the juvenile court’s judgment.
Affirmed.
FRIEDLANDER, J., and CRONE, J., concur.