In the Matter of the Termination of the Parent-Child Relationship of C.K., Mother, J.E., Father, and A.K. and E.K., Children, J.E. v.Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 9, 2015
• Docket: 45A04-1503-JT-94
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Nov 09 2015, 7:17 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 APPELLANT ATTORNEYS FOR APPELLEE Deidre L. Monroe INDIANA DEPARTMENT OF Lake County Public Defender’s Office CHILD SERVICES Gary, Indiana Gregory F. Zoeller Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana ATTORNEY FOR APPELLEE CASA Donald W. Wruck Wruck Paupore PC Dyer, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination November 9, 2015 of the Parent-Child Relationship Court of Appeals Case No. of C.K., Mother, J.E., Father, 45A04-1503-JT-94 and A.K. and E.K., Children, Appeal from the Lake Superior J.E., Court The Honorable Thomas P. Appellant-Respondent, Stefaniak, Jr., Judge v.

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 1 of 14 Indiana Department of Child Trial Court Cause Nos. Services, 45D06-1408-JT-196 45D06-1408-JT-198 Appellee-Petitioner,

Lake County Court Appointed Special Advocate, Appellee.

Kirsch, Judge.

[1] J.E. (“Father”) appeals the juvenile court’s order terminating his parental rights

to his children, A.K. and E.K. (collectively, “the Children”). He raises the

following restated issue on appeal: whether the statutory elements for

terminating Father’s parental rights were established by clear and convincing

evidence. Specifically, Father contends that the trial court was clearly

erroneous in finding that (1) there is a reasonable probability the conditions that

resulted in the Children’s removal or the reasons for placement outside of the

home will not be remedied; (2) there is a reasonable probability that the

continuation of the parent-child relationship poses a threat to the Children’s

wellbeing; and (3) termination is in the Children’s best interest.

[2] We affirm.

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 2 of 14 Facts and Procedural History [3] On February 22, 2013, E.K. was born at thirty-five weeks gestation weighing

four pounds to C.K. (“Mother”).1 The Department of Child Services (“DCS”)

became involved with E.K. and A.K., E.K.’s then one-year-old sibling,2 that

same day, when the hospital contacted it to report that E.K. was born

prematurely and addicted to drugs. Mother admitted to using methadone,

heroine, and marijuana during her pregnancy. A urine screen returned a

positive result for marijuana and methadone. A Family Case Manager

(“FCM”) from DCS investigated the hospital’s report and learned that E.K.

was in the Neonatal Intensive Care Unit (“NICU”) receiving a morphine drip

to treat the drug withdrawal symptoms. Additionally, other children had been

removed from Mother’s care in the past.

[4] DCS removed the Children without a court order on February 25, 2013 and

initiated Child in Need of Services (“CHINS”) proceedings. On February 26,

2013, DCS filed a CHINS petition based on its investigation, and a detention

hearing was held that same day. The juvenile court subsequently ordered the

Children’s removal, and Mother and Father (collectively “the Parents”) to

participate in provisional services. Father was also ordered to establish

paternity for the Children as he and Mother were never married. On April 29,

1 C.K.’s parental rights were also terminated by the juvenile court, but she does not participate in this appeal. We, therefore, only recite facts pertaining to her as they relate to Father’s case. 2 Mother and Father each have other children; however, E.K. and A.K. are their only biological children together.

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 3 of 14 2013, after a CHINS fact-finding hearing, the juvenile court adjudicated the

Children as CHINS retroactive to February 25, 2013. The Parents were

ordered to participate in services geared towards reunification with the

Children. The required services, which were similar to the provisional services,

included a substance abuse evaluation, a clinical assessment to evaluate the

Parents’ mental health needs, a parenting assessment, ongoing drug screens,

parenting classes, and home-based casework services. Additionally, Father was

ordered to find and maintain suitable housing and employment. Although

Father completed the clinical and substance abuse assessments, he failed to

successfully complete the other required services.

[5] Father failed to attend a review hearing3 on May 12, 2014, and the juvenile

court ordered that all services be stopped due to noncompliance of the Parents.

Additionally, the juvenile court changed the permanency plan from

reunification to termination of parental rights with adoption. On August 14,

2014, DCS filed a petition to terminate the parental rights of Mother and

Father.

[6] During the February 10, 2015 termination hearing, Father was evasive about

his criminal history, but admitted that he had spent time in the Lake County

and the Porter County Jails, that he had failed to successfully complete his

probation and that he had spent time in the work release program.

3 Father also failed to attend review hearings on July 24, 2013 and August 1, 2014.

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 4 of 14 [7] Service providers testified that Father did not make himself available for

services on a consistent basis, that he was very inconsistent in his visitations

with the Children, that they had a very difficult time contacting Father to

arrange visits and that he often cancelled or failed to show up at the designated

time and place and eventually stopped attending the visitations altogether.

Father had an overall cancellation rate of eight-five percent.

[8] As for the home-based services, Father only met with the provider five times

over a six-month period. Both Father and Mother struggled with

unemployment and were living in an unsuitable home with “too many

individuals living there.” Tr. at 60. Father’s FCM tried to help him find

suitable housing and employment. Those efforts were unsuccessful, and on

several occasions, Father indicated to the FCM that he did not need the

services. Further, Father acknowledged at the termination hearing that he

knew he needed to complete the services in order to have an opportunity to be

reunited with the Children, but felt that the services were put in place “[f]or

everyone to make money.” Id. at 46. Moreover, it was unclear during the

termination hearing where Father had been living throughout the course of the

case plan.

[9] According to the testimony of the service providers, Father was in denial of his

substance abuse problems and had tested positive for opiates on his drug

screens. Father admitted to having had a problem with alcohol in the past and

failed to comply with the weekly drug screens or participate in the

recommended substance abuse counseling. When Father did submit to drug

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 5 of 14 screens, he was inconsistently clean or had abnormal levels of creatinine in his

system. A service provider testified that abnormal levels of creatinine are

common when individuals try to flush out or mask drugs in their system. The

accumulation of these behaviors led the service providers to question Father’s

interest in staying drug free and his commitment to dealing with his other

substance abuse issues for the sake of the Children.

[10] Since the Children were removed by DCS on February 25, 2013, they have not

returned to either of the Parents. The FCM testified that termination of

parental rights is in the best interest of the Children. The Children have made

great strides in their development, and they have bonded with their foster

parents.

[11] On February 11, 2015, the juvenile court issued its order terminating the

parental rights of Father and Mother. Father now appeals.

Discussion and Decision [12] We begin our review by acknowledging that this court has 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. Moreover, in deference

to the trial court’s unique position to assess the evidence, we will set aside the

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 6 of 14 court’s judgment terminating a parent-child relationship only if it is clearly

erroneous. In re B.J., 879 N.E.2d at 14.

[13] In the present case, the juvenile court entered specific findings of fact and

conclusions when it terminated Father’s parental rights to the Children. We

apply a two-tiered standard of review when the trial court’s judgment contains

specific findings and conclusions. 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. We will only conclude that the trial court’s findings are

clearly erroneous if “the record contains no facts to support them either directly

or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996).

Accordingly, we must affirm if the evidence and inferences support the trial

court’s decision. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.

Ct. App. 2013), trans. denied.

[14] The right of parents to establish a home and raise their children is protected by

the Fourteenth Amendment of the United States Constitution. In re K.T.K., 989

N.E.2d 1225, 1230 (Ind. 2013). “The parent-child relationship is one of our

culture’s most valued relationships.” Id. Parental rights are not absolute and

must be subordinated to the children’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). Moreover, although the right to raise one’s own

children should not be terminated solely because there is a better home for the

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 7 of 14 children, parental rights may be terminated when a parent is unable or

unwilling to meet his or her parental responsibilities. Id.

[15] 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 the placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well- being of the child.

(C) that the 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).

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 8 of 14 [16] Father argues that DCS failed to prove the required elements for termination of

parental rights by sufficient evidence. Specifically, he contends that DCS failed

to present clear and convincing evidence that the conditions that resulted in the

removal or the reasons for placement outside of the home would not be

remedied.

[17] In determining whether there is a reasonable probability that the conditions that

led to the children’s removal and continued placement outside the home would

be remedied, the trial court engages in a two-step analysis. In re K.T.K., 989

N.E.2d at 1231. First, it “must ascertain what conditions led to their placement

and retention in foster care.” Id. Second, “it must 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))). The 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.2d 636, 643 (Ind. 2014)

(quoting In re K.T.K., 989 N.E.2d at 1231). “We entrust that delicate balance to

the trial court, which has 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 parents’ past behavior is the best predictor of

their future behavior. Id.

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 9 of 14 [18] Here, the evidence showed that, in February 2013, the Children were removed

from the Parents due to a report that E.K. was born prematurely and tested

positive for drugs at birth. Mother admitted to using methadone, heroin, and

marijuana during her pregnancy. Mother and Father were together at the time

of the removal, and Father was aware of Mother’s drug use during her

pregnancy. E.K. was in the NICU for some time after his birth due to

complications from being premature and addicted to drugs. A.K. was placed

outside the home with an aunt. The Children were later adjudicated as

CHINS, and the Parents were ordered to not use illegal substances and submit

to drug screens; participate in supervised visitation; complete separate

parenting, clinical, and substance abuse assessments and follow all

recommendations; complete parenting classes; maintain suitable housing and

employment; and participate in case management services. The Children

continued to be placed outside the home for almost two years after they were

removed in February 2013. During that two-year period, extensive services

were offered the Parents to help them reunite with the Children, address their

substance abuse issues, and maintain safe and suitable housing. The trial court

concluded that the services were ineffective due to the Parents’ non-compliance.

[19] Father has a criminal record, had his probation revoked in the past, and was

incarcerated on a probation violation as recently as November 2014. Father

was inconsistent in participating in the court-ordered services, did not show up

for several review hearings and frequently missed his visitations with the

Children. Father attended only five of the weekly home-based service meetings

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 10 of 14 over a six-month period. Father repeatedly refused to submit to drug screens or

was unavailable when service providers attempted to contact him. When

Father did consent to the drug screens, he had several positive and abnormal

results indicating that he either had drugs in his system or may have attempted

to flush out his system. He also refused to participate in the recommended

substance abuse counseling.

[20] The juvenile court was presented with evidence that Father was non-compliant

with those providing services, has a pattern of criminal history, missed a

significant amount of visitations with the Children, was aware of Mother’s drug

use during her pregnancy, and showed signs of substance abuse. 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 of and the reasons for continued placement of the Children outside the

home will not be remedied.

[21] Father argues that DCS failed to present sufficient evidence that the

continuation of the parent-child relationship poses a threat to the Children.

However, we need not address such argument because Indiana Code section

31-35-2-4(b)(2)(B) provides that the State must allege and prove by clear and

convincing evidence one of the three requirements of subsection (b)(2)(B).

A.D.S., 987 N.E.2d at 1155-56. Having determined that sufficient evidence

supported the juvenile court’s conclusion that the conditions that resulted in the

removal of the Children would not be remedied, we do not address whether

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 11 of 14 sufficient evidence supported the conclusion that the continuation of the parent-

child relationship posed a threat to the well-being of the Children.

[22] Father next argues that insufficient evidence was presented to prove that

termination is in the best interests of the Children. In determining what is in

the best interests of the Children, 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 when 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. The trial court may also consider the services offered as well

as the parents’ response to those services. Id. If the parents are unable or

unwilling to effectively use the services recommended to them to properly care

for their child, it may no longer be in the child’s best interests to maintain the

relationship. In re M.S., 898 N.E.2d 307, 312 (Ind. Ct. App. 2008) (citing Febert

v. Marion Cnty. Office of Family & Children, 743 N.E.2d 766, 776 (Ind. Ct. App.

2001)). 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

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 12 of 14 best interests. In re A.K., 924 N.E.2d at 224 (citing McBride v. Monroe Cnty. Office

of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).

[23] E.K. has never lived with Father, and it is unclear how much time A.K.

actually spent in Father’s care prior to the removal. According to the evidence,

A.K. was cared for by her aunt “off and on since the child was 2 weeks old.”

State’s Ex. J at 3. The Children are still very young and are at very critical

points in their development. A.K. and E.K. have and will continue to struggle

with various problems due to their past which require special attention. To

ensure that they continue to develop, the Children need a safe, stable drug-free

home and environment. “Permanency is a central consideration in determining

the best interests of a child.” In re G.Y., 904 N.E.2d at 1265. Father’s

inconsistencies and lack of commitment to completing the court-ordered

services are indicative of the fact that he is unable to provide the necessary

stability that the Children require and deserve. The evidence showed that the

Children’s needs are being met by their current foster parents, the Aldrins, who

wish to adopt them. Additionally, the FCM testified that adoption by the

Aldrins is in the best interests of the Children because “the home they’re in right

now is safe and stable, and the kids already have fun with the family.” Tr. at

103. Based on the above evidence, we conclude that sufficient evidence was

presented to prove that termination was in the best interests of the Children.

The juvenile court’s order was supported by clear and convincing evidence, and

there was no error in terminating Father’s parental rights.

[24] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 13 of 14 Najam, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015 Page 14 of 14