In the Matter of the Termination of the Parent-Child Relationship of: C.K. (a minor child), and E.K. (mother) v. The Indiana Department of Child Services (mem.dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2017
• Docket: 79A05-1608-JT-1763
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2017, 9:55 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Carlos I. Carrillo Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination February 28, 2017 of the Parent-Child Relationship Court of Appeals Case No. of: 79A05-1608-JT-1763 C.K. (a minor child), and Appeal from the Tippecanoe E.K. (mother), Superior Court The Honorable Thomas K. Appellant-Respondent, Milligan, Senior Judge v. Trial Court Cause No. 79D03-1602-JT-8 The Indiana Department of Child Services, Appellee-Petitioner.

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 1 of 11 Statement of the Case [1] E.K. (“Mother”) appeals the termination of the parent-child relationship with

her son, C.K. (“C.K.”), claiming that the Department of Child Services

(“DCS”) failed to prove by clear and convincing evidence that: (1) there is a

reasonable probability that the conditions that resulted in C.K.’s removal or the

reasons for placement outside Mother’s home will not be remedied; (2) a

continuation of the parent-child relationship poses a threat to C.K.’s well-being;

and (3) termination of the parent-child relationship is in C.K.’s best interests.

Concluding that there is sufficient evidence to support the trial court’s decision

to terminate the parent-child relationship, we affirm the trial court’s judgment.

[2] We affirm.

Issue1 Whether there is sufficient evidence to support the termination of the parent-child relationship.

Facts [3] In January and February 2015, DCS received reports that Mother: (1) had left

three children, including one-year-old C.K., in a running car for over an hour;

(2) used heroin daily with three men who lived in her home; (3) sold heroin;

and (4) was the victim of domestic violence. Also during that time, Mother

1 Mother also argues that the trial court erred in denying her motion for a continuance. However, our review of the transcript and appendix reveals that no such motion was filed. We therefore find no error.

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 2 of 11 tested positive for amphetamine and methamphetamine. In February 2015,

DCS removed C.K. from Mother’s care and filed a petition alleging that he was

a child in need of services (“CHINS”). Following a hearing, the trial court

adjudicated C.K. to be a CHINS in April 2015. The trial court ordered Mother

to participate in a substance abuse assessment and to follow all

recommendations. The court also ordered Mother to participate in a domestic

violence group and to submit to random urine drug screens. In addition, the

trial court ordered Mother not to use or possess any illegal drugs or alcohol.

[4] Mother participated in substance abuse assessments in March and April 2015.

The report of the first assessment noted that Mother appeared to minimize her

substance abuse. Following the assessment, DCS referred Mother to an

intensive outpatient (“IOP”) drug treatment program, which conflicted with

Mother’s work schedule. DCS then referred Mother to individual counseling to

accommodate her schedule. Mother continued to deny using illegal drugs even

though she tested positive for methamphetamine in May 2015. That same

month, Mother was charged with Level 6 felony theft and Level 6 felony

possession of heroin. She pled guilty to both counts.

[5] Mother also minimized the nature of the domestic violence between herself and

Father. Although she had initially told DCS that Father was violent and had

choked, shoved, stalked, and physically abused her, Mother allowed Father to

return to live with her in the summer of 2015 despite a no-contact order. After

Father moved back in with Mother, her drug use escalated. In July 2015, the

trial court found Mother in contempt for testing positive for amphetamine,

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 3 of 11 methamphetamine, and morphine. The trial court suspended a sentence of

incarceration on the condition that Mother remained drug and alcohol free and

immediately enrolled in an IOP drug treatment program. That same month,

Mother was charged with Class A misdemeanor trespass. She pled guilty to

that offense as well.

[6] In September 2015, Mother was charged with Level 6 felony neglect of a

dependent for leaving C.K. in the running car for an hour in January 2015. She

pled guilty and was sentenced to two years, with one year executed and one

year suspended to supervised probation. As part of her sentence, Mother was

also ordered to complete substance abuse and mental health evaluations and to

follow all orders in her CHINS case.

[7] Also in September 2015, Mother tested positive for heroin on two separate

occasions. After the two positive results in September, Mother began to miss

her drug screens. In October 2015, the trial court found Mother in contempt for

a second time for failing to remain drug free and submit to random drug

screens. The trial court sentenced her to fifteen days in jail and work release.

Methamphetamine was found in Mother’s garage in November 2015. Mother

was hospitalized for a drug overdose in December 2015, and in January 2016,

Mother was incarcerated because she had violated her probation by using

drugs.

[8] DCS filed a petition to terminate both parents’ parental rights in February 2016.

At the April 2016 termination hearing, DCS Family Case Manager Ashley

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 4 of 11 Weinkauff (“Case Manager Weinkauff”) testified that C.K. had been removed

from Mother because of Mother’s substance abuse and domestic violence

issues. Case Manager Weinkauff testified that it was not likely that the reasons

for C.K.’s removal would be remedied. Specifically, the case manager

explained that the “same thing that [she had] said over is the repetitive pattern

from both parents with their criminal involvement, the substance use . . . their

volatile relationship that they have been back and forth with the whole case.”

(Tr. 206). The case manager further explained that Mother had failed to

acknowledge “the severity of her substance use,” and had failed to make “any

progress dealing with her substance abuse issues.” (Tr. 203, 226). Case

Manager Weinkauff admitted that Mother had exhibited good parenting skills

but nevertheless testified that termination was in C.K.’s best interests. The case

manager further pointed out that Mother had not participated in the court-

ordered domestic violence group.

[9] CASA Stan Kappes (“CASA Kappes”) testified that C.K. had been removed

from Mother because of her drug use and domestic violence issues. He further

testified that the reasons for C.K.’s removal had not been remedied and that her

patterns of conduct revealed that Mother could not remedy them. According to

CASA Kappes, it was substance abuse that was “holding her back.” (Tr. 23).

CASA Kappes also testified that he was concerned that Mother had not

completed a substance abuse program. Lastly, the CASA testified that

termination was in C.K.’s best interests because “[i]t [had] been 15 months and

[C.K.] deserve[d] some stability.” (Vol. 2 Tr. 14). The CASA’s written report

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 5 of 11 also provided that Mother’s “addictions seem[ed] to override her better

judgment and even though she ha[d] shown a lot of good parenting skills, she

ha[d] not shown it in her total actions. Her drug use and associations put

[C.K.] in danger.” (CASA Ex. 1 at 3).

[10] Mother testified that she had always been employed and had housing. She also

testified that she had been financially supporting C.K. while he was in

placement with his paternal aunt and that she had talked to him every day.

[11] Following the hearing, the trial court issued an order that provides in relevant

part as follows:

Conclusions of Law

1. The Court further finds that there is a reasonable probability that the conditions which resulted in the removal of the child will not be remedied and the reasons for the placement outside of the parent’s home will not be remedied. To support this conclusion, the Court cites to the parent’s history of drug use which is serious involving heroin, methadone, methamphetamine, amphetamines, as well as opiates such as oxycontin, and hydrocodone. The parents have been offered services to address those drug issues[.] [T]hey have failed and refused to take advantage of those services and the Court believes given their history, they will not readily agree to significantly and intentionally and purposely address those issues. The Court would also point [to] the domestic violence issues which the parents engaged in. Specifically, the Father’s abuse of Mother physically, mentally, and emotionally and the parties resistance to the parties entering into services that would address those issues on any substantive level. . . .

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 6 of 11 [12] (App. 18). The trial court terminated the parental rights of both Mother and

Father. Mother now appeals. 2

Decision [13] Mother argues that there is insufficient evidence to support the termination of

her parental rights. The Fourteenth Amendment to the United States

Constitution protects the traditional right of parents to establish a home and

raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,

the law provides for termination of that right when parents are unwilling or

unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147

(Ind. 2005). The purpose of terminating parental rights is not to punish the

parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

App. 1999), trans. denied.

[14] When reviewing the termination of parental rights, we will not weigh the

evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

Rather, we consider only the evidence and reasonable inferences that support

the judgment. Id. Where a trial court has entered findings of fact and

conclusions thereon, we will not set aside the trial court’s findings or judgment

unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

whether the court’s decision to terminate the parent-child relationship is clearly

2 Father filed a notice of appeal in August 2016. However, one month later, he filed a motion to dismiss the appeal. This Court granted Father’s motion and dismissed his appeal with prejudice.

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 7 of 11 erroneous, we review the trial court’s judgment to determine whether the

evidence clearly and convincingly supports the findings and the findings clearly

and convincingly support the judgment. Id. at 1229-30.

[15] A petition to terminate parental rights must allege:

(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). DCS must prove the alleged circumstances by

clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.

[16] Here, Mother argues that there is insufficient evidence to support the

termination of her parental rights. Specifically, she contends that the evidence

is insufficient to show that there is a reasonable probability that: (1) the

conditions that resulted in C.K.’s removal or the reasons for placement outside

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 8 of 11 the parent’s home will not be remedied; and (2) a continuation of the parent-

child relationships poses a threat to C.K.’s well-being.

[17] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

disjunctive. Therefore, DCS is required to establish by clear and convincing

evidence only one of the three requirements of subsection (B). In re A.K., 924

N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

is a reasonable probability that the conditions that resulted in C.K.’s removal or

the reasons for her placement outside Mother’s home will not be remedied.

[18] In determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied, we engage in a two-step

analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

conditions that led to removal or placement outside the home and then

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. The second step requires trial courts to judge a parent’s

fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions and balancing any recent improvements against

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. Habitual conduct may include

parents’ prior criminal history, drug and alcohol abuse, history of neglect,

failure to provide support, and a lack of adequate housing and employment.

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).

The trial court may also consider services offered to the parent by DCS and the

parent’s response to those services as evidence of whether conditions will be

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 9 of 11 remedied. Id. Requiring trial courts to give due regard to changed conditions

does not preclude them from finding that a parent’s past behavior is the best

predictor of her future behavior. E.M., 4 N.E.3d at 643.

[19] Here, our review of the evidence reveals that C.K. was removed from Mother’s

home because of Mother’s drug use and domestic violence issues. Both the case

manager and the CASA testified that these reasons for C.K.’s removal had not

been remedied. Following C.K.’s removal, Mother continued to use illegal

drugs such as heroin, amphetamine, and methamphetamine. She failed to

participate in a court-ordered domestic violence group and allowed Father to

return to live with her despite a no-contact order. After Father moved back in

with Mother, her drug use escalated. This evidence supports the trial court’s

conclusion that there was a reasonable probability that the conditions that

resulted in C.K.’s removal would not be remedied. We find no error.

[20] Mother also argues that there is insufficient evidence that the termination was

in C.K.’s best interests. In determining whether termination of parental rights is

in the best interests of a child, the trial court is required to look at the totality of

the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

denied. In so doing, the court must subordinate the interests of the parents to

those of the child involved. Id. Termination of the parent-child relationship is

proper where the child’s emotional and physical development is threatened. 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

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 10 of 11 parent-child relationship. In addition, a child’s need for permanency is a

central consideration in determining the child’s best interests. In re G.Y., 904

N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

may support a finding that termination is in the child’s best interests. McBride v.

Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

2003).

[21] Here, our review of the evidence reveals that CASA Kappes testified that

termination was in C.K.’s best interests because C.K. deserved stability after

fifteen months. Case Manager Weinkauff also testified that termination was in

C.K.’s best interests. The testimony of these service providers, as well as the

other evidence previously discussed, supports the trial court’s conclusion that

termination was in C.K.’s best interests.

[22] We 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.” Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.

[23] Affirmed.

Baker, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A05-1608-JT-1763 | February 28, 2017 Page 11 of 11