In the Matter of the Termination of the Parent-Child Relationship of: K.C. & K.G. (minor children), and R.G. (mother) & T.G. (father) v. Indiana Department of Child Services

• Court: Indiana Court of Appeals
• Decided: September 19, 2014
• Docket: 04A05-1401-JT-47
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Sep 19 2014, 10:34 am 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:

MICHAEL B. TROEMEL GREGORY F. ZOELLER Lafayette, Indiana Attorney General of Indiana

ROBERT J. HENKE DAVID E. COREY Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF ) THE PARENT-CHILD RELATIONSHIP OF: ) ) K.C. & K.G., (minor children), ) ) and, ) ) R.C., (mother) & T.G. (father), ) ) Appellants-Respondents, ) ) vs. ) No. 04A05-1401-JT-47 ) INDIANA DEPARTMENT OF CHLD ) SERVICES. ) ) Appellee-Petitioner. )

APPEAL FROM THE BENTON CIRCUIT COURT The Honorable Rex W. Kepner, Judge Cause Nos. 04C01-1306-JT-50 04C01-1306-JT-52

September 19, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge

Case Summary

R.C. (“Mother”) appeals the termination of her parental rights to her children, K.C.

and K.G. T.G. (“Father”), who is the biological father of K.G. only, appeals the termination

of his parental rights to that child. We affirm.

Issue

The issue before us is whether there is sufficient evidence to support the termination

of Mother’s and Father’s parental rights.

Facts

Mother is the biological mother of K.C., born in 2007, and K.G., born in 2009.

Father is the biological father of K.G. but not K.C., although K.C. called Father “dad.”

K.C.’s biological father is unknown. Mother and Father lived together for some time. They

had a volatile relationship fueled by alcohol use and frequent incidents of domestic

violence in which the police often had to intervene. K.C. developed post-traumatic stress

disorder (“PTSD”) as a result of witnessing the domestic violence between Mother and

Father. K.G. has not been diagnosed with PTSD.

In April 2012, Father and Mother were arrested after Father was driving while

intoxicated with the children unrestrained in the vehicle. The Department of Child Services 2 (“DCS”) became involved, and the children were subsequently declared to be children in

need of services (“CHINS”). The children were not immediately removed from the home.

In June 2012, however, the children were removed from the home and placed in foster care

because Mother and Father continued drinking and fighting in front of the children. There

is no evidence that the children were physically abused or malnourished or that the home

they were living in was inadequate. Father was steadily employed, while Mother stayed at

home. DCS’s plan for both parents was to initially and primarily address their alcohol

abuse ahead of other concerns.

Father eventually was convicted of operating while intoxicated for the April 2012

incident, with a sentencing enhancement for being an habitual substance offender. His

total sentence was six years, with two suspended and four executed. He began his period

of incarceration in February 2013, with an expected release date in February 2015. Before

entering prison, Father continued to drink, even after undergoing individual counseling and

attending a rehab facility in Michigan. After entering prison, Father became involved in

an intensive substance abuse program that ran daily from 5:30 a.m. to 3:30 p.m. Father

also participated in available parenting-related and anger management programs in the

prison. Father anticipated that he would complete the substance abuse program in January

2014, which would result in his release date being moved up to August 2014. Father also

would be eligible for work release upon leaving prison and his previous employer indicated

its willingness to hire him back. Father planned to live with his father upon his release.

Mother was convicted of neglect of a dependent in connection with the April 2012

incident and was placed on probation. On at least four separate occasions, she was referred

3 for treatment of her alcohol abuse through an intensive outpatient program (“IOP”), but

she failed to complete the program every time. Mother was twice found to have violated

her probation for continuing to drink, once in January 2013 and once in April 2013. The

first violation resulted in a forty-five-day sentence and the second resulted in a ninety-day

sentence. After Father went to prison, he and Mother separated. Mother began dating

someone else, an individual with a recent conviction for possession of paraphernalia.

In June 2013, DCS filed its petition to terminate Mother and Father’s parental rights.

After the petition was filed, grandparent visitation was commenced with Father’s father

and Mother’s mother. These visits went well. There also is no evidence that visitation

with Mother and Father—before he was incarcerated—raised any concerns. However,

Mother’s visitation would sometimes be inconsistent because of her lack of reliable

transportation. When Mother would miss scheduled visitation, K.C. in particular would

become upset.

In July 2013, shortly after being released from jail for her second probation

violation, Mother became pregnant. There is no evidence that Mother drank at any time

after she served her second probation violation sentence. All of her tests for alcohol use

between August and December 2013 were negative. Mother also struggled with housing

and employment after Father was incarcerated. She lived in approximately six different

residences during 2013, and she had one job lasting less than thirty days and one lasting

less than two weeks. In December 2013, Mother was living with her current boyfriend’s

aunt. Mother also has a warrant for her arrest outstanding in Illinois for an unspecified

misdemeanor.

4 The trial court conducted a termination hearing on December 6, 2013. At that time,

Mother was facing a third revocation of her probation because of her failure to complete

an IOP. In fact, Mother had missed an initial IOP appointment for her fourth referral just

four days before the termination hearing. Also, at the time of the termination hearing,

Father had not yet completed his prison substance abuse program. The foster mother with

whom K.C. and K.G. had been living since July 2012 expressed her and her husband’s

interest in adopting both children. Evidence also was presented of the close relationship

between K.C. and K.G. and that, generally, the behavior and mental health of both children

had improved since being in foster care. However, in the months immediately preceding

the termination hearing, K.G. had developed some behavioral issues such as hitting and

impulsiveness.

On January 16, 2014, the trial court terminated both Mother and Father’s parental

rights. After the termination was granted, Father filed a motion for relief from judgment

with the trial court, submitting evidence that he had completed his substance abuse program

and now had an expected release date of August 2014. The trial court denied this motion.

Both Mother and Father now appeal.

Analysis

“When reviewing the termination of parental rights, we do not reweigh the evidence

or judge witness credibility.” In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). We consider

only the evidence and reasonable inferences most favorable to the judgment. Id. “We must

also give ‘due regard’ to the trial court’s unique opportunity to judge the credibility of the

witnesses.” Id. (quoting Indiana Trial Rule 52(A)). Where a trial court enters findings of

5 fact and conclusions thereon, as the trial court did here, we apply a two-tiered standard of

review. Id. “First, we determine whether the evidence supports the findings, and second

we determine whether the findings support the judgment.” Id. We will set aside the trial

court’s judgment only if it is clearly erroneous, which occurs if the findings do not support

the trial court’s conclusions or the conclusions do not support the judgment. Id.

A petition to terminate a parent-child relationship must allege:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.

(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made.

(iii) The child has been removed from the parent and has been under the supervision of a county office of family and children or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;

(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.

6 (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 has the burden of proving these allegations by clear and

convincing evidence. I.A., 934 N.E.2d at 1133. We also keep in mind “that parental rights,

while constitutionally protected, are not absolute and must be subordinated to the best

interests of the child when evaluating the circumstances surrounding termination.”

McBride v. Monroe County Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct.

App. 2003).

Our supreme court recently observed:

Decisions to terminate parental rights are among the most difficult our trial courts are called upon to make. They are also among the most fact-sensitive—so we review them with great deference to the trial courts, recognizing their superior vantage point for weighing the evidence and assessing witness credibility. Because a case that seems close on a “dry record” may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.

In re E.M., 4 N.E.3d 636, 640 (Ind. 2014). Although termination of parental rights requires

clear and convincing evidence, this standard “is not a license to reweigh the evidence.” Id.

at 642. We do not independently determine whether that heightened standard is met but

must defer to the trial court’s findings. Id. Even if the evidence could have permitted a

7 denial of termination, we will not reverse a granting of termination unless the evidence

compels denial. Id. at 649.1

Mother and Father argue that there was insufficient evidence either that the

conditions resulting in the children’s removal would not remedied or that continuation of

the parent-child relationship poses a threat to the well-being of the children. The trial court

found sufficient evidence to support a conclusion as to both. Because the termination

statute is written in the disjunctive, the DCS was only required to prove one or the other,

but not both.2 See Bester v. Lake County Office of Family & Children, 839 N.E.2d 143,

148 n.5 (Ind. 2005). We will focus our analysis upon whether there is sufficient evidence

that continuation of the parent-child relationship poses a threat to the well-being of the

children and need not determine whether there was a reasonable probability that the

conditions leading to the children’s removal from Mother and Father’s home would not be

remedied. See id.

“In determining whether the continuation of a parent-child relationship

poses a threat to the children, a trial court should consider a parent’s habitual pattern of

conduct to determine whether there is a substantial probability of future neglect or

deprivation.” In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012). Courts must also judge

a parent’s fitness to care for her child as of the time of the termination hearing, taking into

1 On appeal, Mother and Father urge us to apply a less deferential standard of review, in accordance with Justice Rucker’s dissent in E.M. We are required, however, to follow the majority opinion in E.M. and its emphasis upon great deference to trial courts in termination cases. 2 There is no evidence that either child had twice previously been found to be CHINS, as allowed for a third grounds for termination under Indiana Code Section 31-35-2-4(b)(2)(B)(iii).

8 consideration any evidence of changed conditions. Id. Courts also may consider any

services offered by the DCS and a parent’s response to those services. In re J.C., 994

N.E.2d 278, 287 (Ind. Ct. App. 2013). “Additionally, in evaluating a parent’s habitual

pattern of conduct, courts have properly considered, among other things, evidence of a

parent’s prior drug and alcohol abuse, history of neglect, and failure to provide financial

support.” A.J. v. Marion County Office of Family & Children, 881 N.E.2d 706, 717 (Ind.

Ct. App. 2008), trans. denied.

Here, Mother and Father threatened the well-being of K.C. and K.G. by their

excessive drinking, which led to violent confrontations in front of the children. These

confrontations left at least K.C. with PTSD. Although there is no evidence the children

were physically abused, this emotional trauma can in fact be categorized as abuse of both

children, even if K.G. has not been diagnosed with PTSD. See E.M., 4 N.E.3d at 644-45

(stating that domestic violence in front of seven children that caused five children to be

diagnosed with PTSD could be considered abuse of all the children, including ones not

diagnosed with PTSD). Thus, it was critically important for both Mother and Father to

bring their drinking under control for the sake of their children.

Despite this, and despite efforts by DCS and others to get Mother and Father to stop

drinking through various programs, Mother and Father were not compliant with any

services for at least ten months after the CHINS case was initiated. Father continued

drinking right until the time of his incarceration in February 2013. Indeed, he told DCS

workers not to bother testing him for alcohol consumption prior to his incarceration

because he would test positive. It is commendable that Father has taken positive steps to

9 addressing his drinking problem while incarcerated; there is no dispute that he participated

in an intensive substance abuse program in prison and has participated in other counseling

programs, including anger management. It is worrisome, however, that Father did not

begin taking these steps until he was incarcerated despite having opportunities to do so.

The trial court expressed its concern that Father’s behavior while in prison may not be a

reliable indicator of how he will behave when not incarcerated. It also is worth noting that

Father’s incarceration was not the result of a one-time mistake; his sentence was enhanced

for being an habitual substance offender, indicating a long-term problem that he has failed

to address in the past despite having opportunities and incentives to do so. In short, despite

some evidence of attempts to change conditions as of the time of the termination hearing,

the trial court was not required to blindly accept that Father was truly changed, in light of

his habitual patterns of conduct and his failure to address his drinking problems in the

months prior to his incarceration.

As for Mother, she demonstrated no attempt to curb her drinking until the summer

of 2013, over a year after the CHINS case was initiated and only after she twice had her

probation revoked for continuing to drink. It is true that there is no evidence that she drank

following her second probation revocation. All of her alcohol screenings between August

2013 and the termination hearing in December 2013 were negative. However, Mother also

was pregnant during this time frame.

Additionally, even after her second probation revocation, Mother still refused to

participate in any IOP alcohol treatment program, despite efforts by DCS and her probation

officer. In fact, at the time of the termination hearing, Mother was facing a third revocation

10 of her probation for failing to complete an IOP treatment program. Just a few days before

the hearing, Mother had failed to appear at an IOP appointment. Mother’s history of

drinking and the negative effect it has had on her life and her repeated failure to address

that issue, despite numerous opportunities to do so, permitted the trial court to reject her

sobriety beginning in the summer of 2013 as being only a temporary improvement and to

conclude that Mother’s chances of relapsing were substantial. Furthermore, Mother’s

lifestyle in the year prior to the termination hearing was highly transient and there was no

indication that it would improve any time in the near future. There is sufficient evidence

as to both Mother and Father that continuation of the parent-child relationship posed a

threat to the children.

Mother and Father also contend there is insufficient evidence that termination is in

the children’s best interests.3 The gist of their contention is that, given their recent signs of

improvement in battling their alcohol problems, termination of their parental rights should

be forestalled and that the children’s interest in permanency is outweighed by the

possibility that they could be reunited with their parents if Mother and Father continue to

improve. The court in E.M. discussed the tension between a child’s need for permanency

and the fundamental liberty interest at stake in attempting to preserve families. Despite

this tension, the court stated that children “have a paramount need for permanency, which

we have called ‘a central consideration in determining the child’s best interests.’” Id. at

3 Mother and Father argue in part that the best interests standard is unconstitutionally vague. They cite no authority for this proposition, however, thus waiving it for appellate review. See Ballaban v. Bloomington Jewish Cmty., Inc., 982 N.E.2d 329, 335 (Ind. Ct. App. 2013).

11 647-48 (quoting K.T.K. v. Indiana Dep’t of Child Servs., 989 N.E.2d 1225, 1235 (Ind.

2013)). This need is partially embodied in federal and state laws requiring that reasonable

family-preservation efforts be balanced against mandates for accomplishing speedy

permanency. Id. at 648. “Simply stated, children cannot wait indefinitely for their parents

to work toward preservation or reunification—and courts ‘need not wait until the child is

irreversibly harmed such that the child’s physical, mental and social development is

permanently impaired before terminating the parent-child relationship.’” Id. (quoting

K.T.K., 989 N.E.2d at 1235). The E.M. opinion did caution against the possibility of racial

bias, conscious or unconscious, affecting efforts at family reunification.

Here, at the time of the termination hearing, approximately twenty months had

passed since the CHINS case was initiated and eighteen months had passed since the

children had been removed from the home. For nearly half that time, little to no progress

was made by either Mother or Father in addressing their drinking problems. Father’s

progress only came about as a result of his incarceration, which most favorably would not

end until August 2014, or over two years after the children had been removed. Then, K.G.

would be required to wait an additional period of time to see if Father could remain sober

and obtain suitable housing after being released. As for Mother, she only showed some

progress in combatting her drinking problem in the last few months before the termination

hearing. She faced a very uncertain future, with the possibility of a third probation

revocation looming over her. Any reunification would have to wait until Mother could

establish a suitable household for K.C. and possibly K.G., with or without the father of her

third child who has a drug-related criminal history. In other words, even assuming Mother

12 and Father had made some progress by the time of the termination hearing, the time frame

for any possible reunification with their children was highly uncertain and could last for

many months, if not years, if indeed it ever were to take place.

In the meantime, the children were being well-cared for by a foster family that

wished to adopt both children. Keeping the children together was crucially important, as

they were closely bonded to each other. Also, there is no claim or evidence by Mother and

Father that DCS’s wish to move forward with termination and adoption by the foster family

was tainted by any racial bias. As such, we cannot say the trial court clearly erred in finding

that termination was in the children’s best interests.

Conclusion

Even if we were to say that the evidence in this case could have supported denial of

DCS’s termination petition as to either or both parents, we cannot say the evidence

compelled denial. Instead, the trial court’s findings are not clearly erroneous and they

permitted the termination of Mother and Father’s parental rights. We affirm.

Affirmed.

BRADFORD, J., and BROWN, J., concur.