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

• Court: Indiana Court of Appeals
• Decided: May 31, 2019
• Docket: 18A-JT-2170
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 31 2019, 8:52 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE MOTHER Curtis T. Hill, Jr. Tonja V. Kinder Attorney General of Indiana Monroe Co. Public Defender David E. Corey Bloomington, Indiana Deputy Attorney General ATTORNEY FOR APPELLANT FATHER Indianapolis, Indiana Stuart K. Baggerly Monroe Co. Public Defender Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination May 31, 2019 of the Parent-Child Relationship Court of Appeals Case No. of T.J., A.J., and Z.K., Minor 18A-JT-2170 Children Appeal from the Monroe Circuit E.K., Mother, and G.K., Father, Court The Honorable Stephen R. Galvin, Appellants, Judge v. Trial Court Cause Nos. 53C07-1712-JT-974 53C07-1712-JT-975 The Indiana Department of 53C07-1712-JT-976 Child Services, Appellee.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 1 of 13 Brown, Judge.

[1] E.K. (“Mother”) appeals the involuntary termination of her parental rights with

respect to her children, T.J., A.J., and Z.K., and G.K. (“Father,” and together

with Mother, “Parents”) appeals the involuntary termination of his parental

rights with respect to his child, Z.K. We affirm.

Facts and Procedural History

[2] Mother is the parent of three children, T.J., born on June 22, 2011, A.J., born

on August 8, 2012, and Z.K., born on November 29, 2014. Father is the father

of Z.K. Tr.J. is the father of T.J., and J.H. is the father of A.J. 1

[3] In December 2015, the Department of Child Services (“DCS”) filed petitions

alleging the children were in need of services. 2 On February 29, 2016, the court

entered an order finding Z.K. to be a child in need of services (“CHINS”). On

July 11, 2016, the court entered a Dispositional Order and Six Month Review

Order with respect to Z.K., which ordered Parents to complete certain services.

On August 4, 2016, the court entered an order finding T.J. and A.J. to be

CHINS and entered a dispositional order. On October 16, 2017, the court

entered an Order on Permanency Review stating that Mother was unable or

unwilling to put the skills she is taught into practice, tested positive for THC on

1 The court also terminated the parental rights of Tr.J. and J.H., and they do not appeal the termination of their parental rights. 2 The record does not contain a copy of these petitions.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 2 of 13 multiple occasions, failed to appear for drug screens, violated safety plans, and

struggled in her relationship with Father. The order stated that Father had not

participated in certain services, had been terminated from his domestic violence

program, and was arrested for domestic violence against Mother in May 2017

and for theft in July 2017. The court changed the permanency plan to

termination of parental rights and adoption.

[4] On December 26, 2017, DCS filed verified petitions for the involuntary

termination of the parent-child relationship between Mother and A.J., T.J., and

Z.K., and between Father and Z.K. On May 17 and June 13, 2018, the court

held hearings on the petitions.

[5] On August 2, 2018, the court entered a twenty-one page order terminating the

parent-child relationships with 114 findings of fact. The court found domestic

violence between Mother and Tr.J.; Mother admitted the domestic violence in

the home was dangerous for T.J.; Father had a history of domestic violence;

Mother was homeless for a period of time; and Mother took no steps to protect

T.J. when he was living with Tr.J. and was aware there was a registered sex

offender living in the same home. It found that Father was charged with

domestic battery against Mother on July 23, 2014; Mother reported that a

pencil was shoved in her eye; and Father pled guilty to domestic battery as a

class A misdemeanor on January 26, 2015. It found that Z.K. was found at the

home unsupervised on December 1, 2015; Parents were found sleeping upstairs;

and they admitted they had left Z.K. downstairs for several hours. It also found

that police officers found one-year-old A.J. locked in her room on May 26,

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 3 of 13 2015; Mother stated that she and Father locked A.J. in her room each night to

prevent her from leaving the room; and Mother admitted that she had punched

Father in the stomach and hit him with her purse.

[6] The court noted that Guardian ad litem Melissa Richardson (“GAL

Richardson”) testified that the children were starving for consistency and

predictability and when she attempted to explain that the children needed a

primary caregiver, it became clear that Mother did not understand what that

meant. During May and June, 2016, DCS offered intensive in-home services to

Parents but domestic violence continued between Parents; on June 15, 2016,

Father shoved Mother into a vacuum cleaner in T.J.’s presence; Mother would

not allow Family Case Manager Amanda Grossi (“FCM Grossi”) to

photograph her injuries because she stated that she was not sure they were

caused by Father; a safety plan created to prevent further domestic violence was

not followed; and on July 11, 2016, the children were removed from Mother’s

care due to ongoing drug use, continued domestic violence, inappropriate

discipline by Father, and lack of compliance with services. It found that a new

incident of domestic violence occurred in May 2017 when Father choked

Mother in T.J.’s presence to the point where she could not breathe; Father was

arrested for domestic battery; and Mother minimized his behavior and stated

that “he only choked me a little bit.” Appellants’ Appendix Volume II at 17.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 4 of 13 [7] The court found that T.J. reported prior sexual abuse and was struggling with

sexually inappropriate behaviors and Parents struggled to understand the

importance of the safety plans put in place for T.J. and his siblings and did not

follow the safety plans. It found that A.J. had been diagnosed with PTSD,

threatened to kill herself, and required a consistent and stable environment. It

found that Parents were self-medicating with marijuana; Mother would take her

medication as prescribed at times but continued to use marijuana; and Mother

ceased taking her medication in November or December 2017 at Father’s

urging. It found that Mother did not complete her psychological evaluation as

ordered; she stated on two occasions that she could not handle Father’s

behaviors and needed to check herself into the mental health unit at

Bloomington Hospital; she participated in less than half of her scheduled drug

screens and only three in 2018; and she regularly admitted to using marijuana.

[8] The court noted that GAL Richards testified that Mother is not benefitting from

services and that, despite years of intensive services, Mother periodically states

that she does not understand why her children were removed from her care. It

found that Father never completed treatment; he told his therapist, Ron Smith,

on February 18, 2016, that if his wife cheats on him and does not tell him first,

he will kill her and her ex-boyfriend; he came to counseling sessions while

impaired and could not maintain sobriety; Mother called Father’s home-based

therapist in November or December 2017 and the therapist could hear

screaming; Father does not believe that he is a batterer or that he needs

treatment; he threatened to harm himself by jumping off a parking garage in in

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 5 of 13 May 2016; and he participated in only 63 of 147 possible drug screens and

completed only three in 2018.

[9] The court concluded that there was a reasonable probability that the conditions

which resulted in the removal of the children or the reasons for placement

outside the home would not be remedied, and that the continuation of the

parent-child relationship posed a threat to the well-being of the children. It also

concluded that termination of the parent-child relationship was in the best

interests of the children.

Discussion

[10] The issue is whether the evidence is sufficient to support the termination of the

parental rights of Parents. In order to terminate a parent-child relationship,

DCS 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

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 6 of 13 (D) that there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition

described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

child relationship. Ind. Code § 31-35-2-8(a).

[11] The State’s burden of proof for establishing the allegations in termination cases

“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

‘heightened burden of proof’ reflecting termination’s ‘serious social

consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

heightened standard is the trial court’s prerogative—in contrast to our well-

settled, highly deferential standard of review.” Id. We do not reweigh the

evidence or determine the credibility of witnesses, but consider only the

evidence that supports the judgment and the reasonable inferences to be drawn

from the evidence. Id. We confine our review to two steps: whether the

evidence clearly and convincingly supports the findings, and then whether the

findings clearly and convincingly support the judgment. Id.

[12] Reviewing whether the evidence clearly and convincingly supports the findings,

or the findings clearly and convincingly support the judgment, is not a license to

reweigh the evidence. Id. “[W]e do not independently determine whether that

heightened standard is met, as we would under the ‘constitutional harmless

error standard,’ which requires the reviewing court itself to ‘be sufficiently Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 7 of 13 confident to declare the error harmless beyond a reasonable doubt.’” Id.

(quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due

regard” to the trial court’s opportunity to judge the credibility of the witnesses

firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,

989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “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.” Id. at 640. The involuntary

termination statute is written in the disjunctive and requires proof of only one of

the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).

[13] Mother argues that she was working to remedy the conditions that caused the

removal of the children. She challenges the court’s conclusions that she had not

benefitted from the services and that she did not think she needed parenting

instructions. She also asserts that the children are perfectly safe in her care and

that termination is not in the children’s best interests.

[14] Father argues that he made great strides in remedying the conditions that

caused Z.K. to be removed. He challenges the court’s conclusions that he had a

history of domestic violence, that domestic violence continued, and that he has

not benefitted or actively engaged with the multitude of services offered. He

also argues that termination is not in the child’s best interests.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 8 of 13 [15] DCS contends that Mother and Father do not specifically challenge any of the

court’s findings of fact and that they “rely almost exclusively on the court’s

termination order in their statement of the facts.” Appellee’s Brief at 29. It

asserts that the reasons for the children’s continued removal include the failure

to benefit from services, failure to provide appropriate care and supervision, and

failure to address their mental health, domestic violence, and substance abuse.

It also argues that termination is in the children’s best interests.

[16] In determining whether the conditions that resulted in the children’s removal

will not be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at

642-643. First, we identify the conditions that led to removal, and second, we

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. at 643. In the second step, the trial court must judge a

parent’s fitness as of the time of the termination proceeding, taking into

consideration evidence of changed conditions, balancing a parent’s recent

improvements against habitual patterns of conduct to determine whether there

is a substantial probability of future neglect or deprivation. Id. 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.

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

his future behavior. Id.

[17] The statute does not simply focus on the initial basis for a child’s removal for

purposes of determining whether a parent’s rights should be terminated, but

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 9 of 13 also those bases resulting in the continued placement outside the home. In re

N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider

evidence of a parent’s prior criminal history, history of neglect, failure to

provide support, lack of adequate housing and employment, and the services

offered by DCS and the parent’s response to those services. Id. Where there

are only temporary improvements and the pattern of conduct shows no overall

progress, the court might reasonably find that under the circumstances the

problematic situation will not improve. Id.

[18] To the extent Mother and Father do not challenge the court’s findings of fact,

the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373

(Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in

waiver of the argument that the findings were clearly erroneous), trans. denied.

[19] With respect to Mother and Father’s failure to make progress, we observe that,

in addition to the unchallenged findings, FCM Grossi testified that Mother had

been mostly compliant in services but had not internalized what she had

learned in those services to be able to apply them. When asked if there had

been any recent conversations with Mother that would indicate lack of progress

regarding her role as a parent in the CHINS case, she answered:

Sure, yes. Recently[, Mother] has made statements to me . . . for example she called and reported that after a visit, she had a visit with [T.J.] on a Tuesday, she called a week later and reported to me that he had a bruise on his leg. [I] asked her why she didn’t report it until now. [S]he stated to me that it wasn’t her responsibility to do things like that. That she told the visit

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 10 of 13 supervisor that DCS had taken her children away . . . and therefore it . . . was not her responsibility to keep me informed of those things.

Transcript Volume IV at 129. She also testified that she was asking the court to

terminate parental rights because “I don’t feel like . . . the reasons for removal

have been remedied, I don’t feel like the parents have made significant progress

in address [sic] what the department has asked them to address. Um I don’t

feel the children’s, the children would be safe in returning to the home today.”

Id. at 159.

[20] Cummings, the therapist who worked with Parents, testified that T.J. struggled

with sexually inappropriate behaviors and “really struggled” with loud noises or

chaos in general. Transcript Volume IV at 229. She testified that Parents were

not able to follow through with the safety plans. When asked if they made

statements that would demonstrate that they understood their role in parenting

a child with trauma, she answered: “Unfortunately no. I felt like they actually

fought me every time that I tried to explain how trauma was affecting . . . his

behaviors and I felt that they would choose not to use them because they felt

that the way they were parenting was appropriate.” Id. at 231-232.

[21] As to the drug issue, Mother indicated that there had been periods of time

recently where she did not complete drug screens and admitted that she

continued to use marijuana. GAL Richardson indicated that Mother and

Father ceased participation in almost all drug screens.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 11 of 13 [22] With respect to the domestic violence, GAL Richardson testified that Mother

minimized the impact of domestic violence. Smith, a therapist, testified that

Father participated in a domestic violence program, but was discharged twice

from the batterer’s treatment program. When asked if Father admitted to being

a batterer, FCM Grossi answered: “No. [I]n fact in all of my conversations

with [Father] again made it clear to me that he feels like batterer’s intervention

treatment was not what he needed.” Id. at 137.

[23] Based upon the court’s findings and the record, we conclude that clear and

convincing evidence supports the trial court’s determination that there is a

reasonable probability that the conditions leading to the children’s removal will

not be remedied.

[24] In determining what is in the best interests of a child, the trial court is required

to look beyond the factors identified by DCS and to the totality of the evidence.

McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

App. 2003). In so doing, the court must subordinate the interests of the parent

to those of the children. Id. Children have a paramount need for permanency

which the Indiana Supreme Court has called a central consideration in

determining the child’s best interests, and the Court has stated that 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. In re E.M., 4 N.E.3d

at 647-648. However, focusing on permanency, standing alone, would

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 12 of 13 impermissibly invert the best-interests inquiry. Id. at 648. Recommendations

by both the case manager and child advocate to terminate parental rights, in

addition to evidence that the conditions resulting in removal will not be

remedied, is sufficient to show by clear and convincing evidence that

termination is in the child’s best interests. A.D.S. v. Ind. Dep’t of Child Servs., 987

N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.

[25] FCM Grossi testified that she was asking the court to terminate parental rights.

Cummings, the therapist, testified that she believed the children should proceed

with adoption. GAL Richardson testified that she recommended termination

of parental rights and that “the final outcome is still that we don’t have a stable

home for kids after years of trying.” Transcript Volume V at 75. When asked if

she believed adoption was in the children’s best interest, GAL Richardson

answered: “Absolutely.” Id. at 78. Based on the testimony, as well as the

totality of the evidence in the record and set forth in the trial court’s termination

order, we conclude that the court’s determination that termination is in the best

interests of the children is supported by clear and convincing evidence.

[26] Affirmed.

May, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019 Page 13 of 13