MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 24 2015, 9:10 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Thomas G. Krochta Gregory F. Zoeller Vanderburgh County Public Defender Attorney General of Indiana Evansville, Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination August 24, 2015 of the Parent-Child Relationship Court of Appeals Case No. of T.K., Mother, J.W.R., Father, 82A04-1501-JT-29 and K.R., J.R., and N.K., Appeal from the Vanderburgh Children: Superior Court T.K. and J.W.R., The Honorable Brett J. Niemeier, Judge Appellants-Respondents, Trial Court Cause Nos. v. 82D01-1406-JT-62 82D01-1406-JT-63 82D01-1406-JT-64 Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 1 of 14 Kirsch, Judge.
[1] T.K. (“Mother”) and J.W.R. (“Father”) (together, “Parents”) appeal the
juvenile court’s order terminating their parental rights to their children, K.R.,
J.R., and N.K. Parents raise the following restated issue on appeal: whether
sufficient evidence was presented to support the termination of Parents’
parental rights.
[2] We affirm.
Facts and Procedural History [3] N.K. was born on June 8, 2006, J.R. was born on March 31, 2008, and K.R.
was born on October 4, 2012. N.K., J.R., and K.R. (collectively, “the
Children”) are all biological children of Mother, and Father is the biological
father of J.R. and K.R.; Father is not the biological father of N.K. 1 N.K. and
J.R. have previously been subject to prior interactions with the Indiana
Department of Child Services (“DCS”). On August 12, 2009, DCS filed a
Child in Need of Services (“CHINS”) petition alleging that N.K. and J.R. were
CHINS due to unsanitary conditions in the home and hygiene issues. The
juvenile court adjudicated N.K. and J.R. to be CHINS, and ordered Parents to
participate in services. On March 5, 2010, the CHINS case was closed. In
February 2011, DCS had contact with family due again to unsanitary
1 N.K.’s biological father is not a party to this case, and a fact finding as to the termination of his parental rights was to be held separately.
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 2 of 14 conditions in the home and because of an allegation of sexual abuse concerning
N.K. The Children were removed because the home was found to be an unsafe
environment for them. The Children were again adjudicated CHINS, and
Parents were ordered to participate in services. The CHINS case was closed on
November 18, 2011.
[4] Parents began participating in Community Partners with family counselor
Lewis Wilson on January 18, 2013. Community Partners is a volunteer-basis
program to which people are referred in order to achieve certain goals. In the
Parents’ situation, their housing environment was poor, and they needed to
work on parenting and community resourcing. Wilson took Mother to apply
for housing at several places, but she was not successful in securing anything.
Wilson did not recall taking the Parents to secure employment, and he
understood that, due to the Parents’ circumstances, they were not looking for
employment. Due to their lack of income, Parents had to focus only on free or
subsidized housing. Community Partners stopped services with Parents on
September 10, 2013 due to the current CHINS case being filed.
[5] On September 9, 2013, DCS filed a CHINS petition concerning the Children.
The petition alleged poor hygiene of the Children, dirty living conditions, and
allegations of domestic violence between Parents, which endangered the
Children’s physical and mental condition. There had been a report of one of
the Children being found outside the home at midnight, and Parents not being
able to be located for several minutes. A family case manager (“FCM”) who
went to the home after this report found the home to be very dirty with dishes
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 3 of 14 piled in the sink, a musty smell in the home, and a chemical smell in the home
consistent with bug spray. Roaches were seen in the house, and the Children
were dirty and wearing dirty clothing. The baby’s bed and pillow were stained,
and formula could not be found in the home. It had also been reported by the
Children that there was a lot of arguing and fighting, consisting of pushing and
hitting, between Parents. On September 5, 2013, one of the Children was also
found to have a burn from a cigarette that had been flicked on him.
[6] The Children were removed from the home in early September 2013. On
September 10, 2013, Parents stipulated, and the juvenile court adjudicated, the
Children to be CHINS. A dispositional hearing was held, and Parents were
ordered to participate in services including: (1) maintain contact with the FCM
and notify of changes in contact information, household composition, or
criminal charges; (2) allow FCM to make unannounced visits; (3) enroll in any
recommended programs; (4) maintain stable housing and employment; (5)
complete a parenting assessment and all recommendations; and (6) attend all
scheduled visitations and comply with the rules and procedures set forth. On
June 11, 2014, DCS filed a petition to terminate the parental rights of Parents.
Termination hearings were held on September 9, 2014 and October 23, 2014, in
which evidence was heard.
[7] During the hearing, the following testimony and evidence was presented. At
the time of the hearing, Mother stated that Parents had been staying at
Woodcreek Inn & Suites off and on for “two months or so.” Tr. at 30. Before
that, they had been “on the street for about a week or so” and staying with
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 4 of 14 friends when it was “too cold to be on the streets.” Id. Since September 5,
2013, Parents had been homeless and living on the streets twice and had been
homeless and living with friends twice. Starting in May 2014, and for
approximately a month and a half, Mother lived in a homeless shelter while
Father lived with his uncle. Parents had previously lived in several apartments,
but had been evicted from them all, including: a house where they lived for
approximately one year; another house where they resided for about thirteen to
fourteen months; and an apartment where they lived for approximately eleven
months. At the time of the hearing, Parents owed over $1,000 in court costs
from one of the evictions. Father also owed some money for an electric bill
from one of the houses.
[8] Parents had trouble maintaining stable housing and appropriate housing. In
January 2013, Parents were living in a two-room apartment with one other
adult and five children. They moved to a slightly larger house, but the home
was infested with cockroaches. A service provider who visited the home had to
bring cockroach spray and spray around her chair when she went to the home.
In January, the home where Parents were residing became infested with
bedbugs. Due to this infestation, visitation with the Children was suspended
until Parents were able to obtain housing that was free from bedbugs.
However, Parents were unable to do so.
[9] Additionally, evidence was presented that Parents never completed high school
or obtained a GED. Both Parents dropped out of high school in the ninth
grade, and although Father had tried numerous timed to obtain his GED, he
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 5 of 14 had not been successful. At the time of the termination hearing, Mother had
been employed for only a few days through a temporary employment agency.
She had previously been employed through another employment agency.
Mother had also previously been employed by Hardees, but was let go because
she was involved in an altercation with another employee. At the time of the
hearing, Father had begun working approximately forty hours a week for a
janitorial company through a temporary employment service and had been
working at that job for a couple of weeks. Father had previously been
employed from March 2014 to the end of April 2014 through an employment
agency. Prior to that, Father had worked in 2008 and 2009 until he was laid
off. Father also had been “scrapping” and trying to get on disability. Tr. at 76.
He testified that he has trouble holding employment because he gets bored.
[10] During the pendency of this case, DCS referred Parents for supervised visitation
with the Children. Prior to the commencement of visitation, Parents
participated in four home sessions to learn parenting skills to implement during
the visitations. Parents participated in thirteen supervised visitations with the
Children at the DCS office and did well during the visits. However, they did
not show the ability to put into practice what they had learned without
someone supervising them. Parents never had any unsupervised visitation with
the Children due to their failure to secure appropriate housing and stable
employment.
[11] At the time of the termination hearing, the Children had been removed from
the home since September 5, 2013. The court appointed special advocate
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 6 of 14 (“CASA”) testified that the Children were doing well in their placement and
enjoying school. The Children’s behaviors had become less chaotic and more
settled. The Children had done better since contact with Parents was
suspended. Nightmares that the Children were experiencing had stopped, and
other concerning behaviors of the Children had improved. Both the CASA and
the FCM stated that they believed that termination of the Parents’ parental
rights was in the best interests of the Children. The FCM also stated that the
Children were “adoptable” and needed a “forever home” that would “give
them what they need and what they deserve, which is [a] clean home, clean
clothes, [to] always have dinner, [and to] always be loved.” Tr. at 158. DCS’s
plan for the Children was adoption.
[12] On December 17, 2014, the juvenile court issued its findings of fact,
conclusions, and order terminating Parents’ parental rights to the Children.
Parents now appeal.
Discussion and Decision [13] 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 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.
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 7 of 14 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.
[14] Here, in terminating Parents’ parental rights to the Children, 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.
[15] 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 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.
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 8 of 14 [16] 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).
[17] Parents argue that DCS failed to prove the required elements for termination by
sufficient evidence. Specifically, they contend that DCS failed to present
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 9 of 14 sufficient evidence that the conditions that resulted in the Children being
removed would not be remedied. Parents also argue that DCS failed to present
sufficient evidence that the continuation of the parent-child relationship posed a
threat to the Children. They further allege that DCS failed to present sufficient
evidence that termination of their parental rights was in the best interests of the
Children. Parents assert that, although housing, money, and cleanliness have
been issues throughout the case, the evidence showed that Father had a job at
the time of the hearing, and his prospects for stable employment were good,
which would resolve these issues.
[18] In determining whether there is a reasonable probability that the conditions that
led to a child’s removal and continued placement outside the home would be
remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,
989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions
led to their placement and retention in foster care.” Id. Second, “we
‘determine whether there is a reasonable probability that those conditions will
not be remedied.’” Id. (citing In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)
(citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second
step, the trial court must judge a parent’s fitness at the time of the termination
proceeding, taking into consideration evidence of changed conditions and
balancing a parent’s recent improvements against “ ‘habitual pattern[s] of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989
N.E.2d at 1231). “We entrust that delicate balance to the trial court, which has
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 10 of 14 discretion to weigh a parent’s prior history more heavily than efforts made only
shortly before termination.” Id. Although trial courts are required to give due
regard to changed conditions, this does not preclude them from finding that a
parent’s past behavior is the best predictor of their future behavior. Id.
[19] Here, the evidence showed that the Children were originally removed from the
home due to several reports of inappropriate and unsafe living conditions for
the Children and a report of one of the Children being burned by a cigarette that
had been flicked on him. The Children were later adjudicated as CHINS based
on their poor hygiene, the dirty home, and reports of domestic violence in the
home. The Children continued to be placed outside of the home because
Parents failed to benefit from the services offered by DCS, were unable to
maintain stable housing and employment, were not able to resume visitations
with the Children after the visits were suspended due to the Parents’ apartment
being infested with bedbugs, and often lived in places where the living
conditions were unsafe for the Children.
[20] At the time of the termination hearing, Parents’ housing situation was worse
than at the time the Children were removed. For the two months preceding the
hearing, Parents had been living off and on in a hotel. At one point during the
pendency of the case, Mother was living in a homeless shelter, and Father was
living with a relative. Parents also had been homeless four different times since
the Children had been removed, living on the streets or with friends.
Additionally, although Father had found employment at the time of the
hearing, there was evidence that Father’s employment had not been stable
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 11 of 14 throughout the case as he had difficulty maintaining employment. Mother had
been employed very little during the course of the case, and at the time of the
hearing, she had only been employed for a couple of days. Further, Parents
failed to participate in services and in visitations with the Children. They only
attended four training sessions and thirteen visitations. After the visitations
were suspended due to the bedbug infestation at the Parents’ apartment, they
never resumed. Parents were also never able to have unsupervised visitations
with the Children due to their lack of appropriate housing. 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 the Children outside the
home would not be remedied.
[21] Parents also contend 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 the Children. However, we need
not address such argument. 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 the
Children would not be remedied, we will not address any argument as to
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 12 of 14 whether sufficient evidence supported the conclusion that the continuation of
the parent-child relationship posed a threat to the well-being of the Children.
[22] Parents next argue that insufficient evidence was presented to prove that
termination is in the best interest of the Children. 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 or her 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)).
[23] Here, the evidence presented showed that, since 2009, Parents have been
involved with DCS concerning their difficulty in providing the Children with
appropriate, safe, and stable housing. At the time of the hearing, Parents had
still not been able to obtain stable housing as they had been staying in a hotel
off and on for the previous two months, and before that, they had been
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 13 of 14 homeless, living on the streets or with friends. Further, the homes where
Parents have lived have been dirty, crowded, and infested with bedbugs or
cockroaches. N.K. and J.R. had been subjected to this instability in housing,
poor hygiene, and unsanitary conditions since the Parents’ first interaction with
DCS in 2009. The Children deserve permanency and stability. “Permanency is
a central consideration in determining the best interests of a child.” In re G.Y.,
904 N.E.2d at 1265. The FCM testified that the Children deserved permanency
and to have “[a] clean home, clean clothes, always have dinner, [and] always be
loved.” Tr. at 158. Additionally, both the CASA and the FCM testified that
they believed that termination of the Parents’ parental rights was in the
Children’s best interest. Based on the above, we conclude that sufficient
evidence was presented to prove that termination was in the best interest of the
Children.
[24] 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 Parents’
parental rights to the Children was clearly erroneous. We therefore affirm the
juvenile court’s judgment.
[25] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A04-1501-JT-29 | August 24, 2015 Page 14 of 14