In the Matter of the Termination of the Parent-Child Relationship of W.O. K.N. (Mother) and R.O. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 13, 2018
• Docket: 18A-JT-1545
• 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 Dec 13 2018, 9:26 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT, K.N. ATTORNEYS FOR APPELLEE Michael B. Troemel Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana ATTORNEY FOR APPELLANT, R.O. Katherine A. Cornelius Deputy Attorney General Kyle D. Gobel Indianapolis, Indiana Collier Gobel, Homann, LLC Crawfordsville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination December 13, 2018 of the Parent-Child Relationship Court of Appeals Case No. of W.O.; 18A-JT-1545 K.N. (Mother) and R.O. Appeal from the Fountain Circuit (Father), Court The Honorable Stephanie Appellants-Respondents, Campbell, Judge v. Trial Court Cause No. 23C01-1711-JT-189 The Indiana Department of Child Services, Appellee-Petitioner.

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018 Page 1 of 10 Statement of the Case [1] K.N. (“Mother”) and R.O. (“Father”) each appeal the termination of the

parent-child relationship with their daughter, W.O. (“W.O.”), claiming that

there is insufficient evidence to support the termination. Specifically, Mother

and Father both argue 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 W.O.’s removal or the reasons

for placement outside the home will not be remedied; and (2) a continuation of

the parent-child relationship poses a threat to W.O.’s well-being. Both parents

also argue that DCS failed to prove that termination of the parent-child

relationships is in W.O.’s best interests. Concluding that there is sufficient

evidence to support the termination of the parent-child relationships, we affirm

the trial court’s judgment.

[2] We affirm.

Issue The sole issue for our review is whether there is sufficient evidence to support the terminations.

Facts [3] W.O. was born in June 2010. When Mother was stopped for speeding in 2015,

five-year-old W.O. was in the car. Police officers found marijuana and

paraphernalia in the car and arrested Mother. A subsequent report to DCS

revealed that Mother and W.O. had been living in the car and that Father was

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018 Page 2 of 10 living in a tent by the river. W.O. was placed with paternal grandmother, and

DCS filed a petition alleging that W.O. was a child in need of services

(“CHINS”). Shortly after DCS filed this petition, Father was arrested and

charged with possession of marijuana.

[4] In September 2015, the trial court adjudicated W.O. to be a CHINS and

ordered both parents to complete substance abuse and parenting assessments

and follow all recommendations. The parents were also ordered to abstain

from the use of illegal drugs and to obtain a stable source of income as well as

suitable housing.

[5] In March 2017, DCS allowed W.O. to return to Mother’s home for a trial

placement. Father was only allowed supervised visitation because he had failed

to comply with the court’s orders. Shortly after W.O.’s return to Mother’s

home, Mother stopped participating in court-ordered programs and refused to

allow DCS or the court-appointed special advocate (“CASA”) into her home to

see W.O. In addition, Mother allowed Father to have unsupervised contact

with W.O. After Mother tested positive for methamphetamine in July 2017,

the trial court granted DCS’ petition for emergency custody and authorized

DCS to take W.O. into protective custody.

[6] In November 2017, DCS filed a petition to terminate the parental rights of both

parents. At the February 2018 termination hearing, DCS Family Case

Manager Angelina Brouillette (“FCM Brouillette”) testified that Mother had

failed to submit to eight drug screens in September and October 2017 and had

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018 Page 3 of 10 tested positive for methamphetamine and amphetamines in November 2017. In

December 2017, Mother had refused to give a requested hair sample for a hair

follicle drug test. FCM Brouillette testified that she was concerned about

Mother’s continued drug use. According to the case manager, Mother had not

“been making any progress towards remedying the situation that led to

[W.O.’s] removal.” (Tr. 150).

[7] Regarding Father, FCM Brouillette testified that Father had tested positive for

Spice in September 2017. The case manager further testified that Father had

also refused to submit to drug screens from the end of September 2017 until the

end of October 2017. He, like Mother, had then tested positive for

methamphetamine and amphetamines in November 2017. According to FCM

Brouillette, W.O.’s parents have never acknowledged that they have substance

abuse problems or that they need help for them.

[8] FCM Brouillette further testified that termination was in W.O.’s best interest

because neither parent had “made progress with the case plan.” (Tr. 157).

According to FCM Brouillette, W.O. had been living with her paternal

grandmother for over two years and had bonded with her. The plan was for

grandmother to adopt W.O.

[9] CASA Audrey Hayman (“CASA Hayman”) also testified that termination was

in W.O.’s best interest because W.O. needed stability and permanency.

Specifically, CASA Hayman explained as follows regarding W.O.: “She needs

to be safe and she needs to be able to thrive in her environment and, again, we

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018 Page 4 of 10 can’t - - we can’t hit a pause button on a child to wait for parents to get their act

together.” (Tr. 226).

[10] In June 2018, the trial court issued a thirteen-page order terminating both

parents’ parental rights. Each parent separately appeals the terminations.

Decision [11] The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment to the United States Constitution. In

re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.

However, a trial court must subordinate the interests of the parents to those of

the child when evaluating the circumstances surrounding a termination. Id. at

1188. Termination of the parent-child relationship is proper where a child’s

emotional and physical development is threatened. Id. 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.

[12] Before an involuntary termination of parental rights may occur, 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.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018 Page 5 of 10 (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. v. Ind. Dep’t of Child Servs., 989 N.E.2d

1225, 1230 (Ind. 2013).

[13] When reviewing a termination of parental rights, this Court will not reweigh

the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

628 (Ind. 2016). We consider only the evidence and any reasonable inferences

to be drawn therefrom that support the judgment and give due regard to the

trial court’s opportunity to judge the credibility of the witnesses firsthand.

K.T.K., 989 N.E.2d at 1229.

[14] When the trial court’s judgment contains specific findings of fact and

conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56

N.E.3d at 628. First, we determine whether the evidence supports the findings,

and second, we determine whether the findings support the judgment. Id. We

will set aside a trial court’s judgment terminating a parent-child relationship

only if it is clearly erroneous. Id. Findings are clearly erroneous only when the

record contains no facts or inferences to be drawn therefrom that support them.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018 Page 6 of 10 In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). A judgment is clearly

erroneous if the findings do not support the trial court’s conclusions or the

conclusions do not support the judgment. Id.

[15] Mother and Father first argue that DCS failed to prove by clear and convincing

evidence that: (1) there is a reasonable probability that the conditions that

resulted in W.O.’s removal or the reasons for placement outside the home will

not be remedied; and (2) a continuation of the parent-child relationship poses a

threat to the W.O.’s well-being. However, 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), trans.

dismissed. We therefore discuss only whether there is a reasonable probability

that the conditions that resulted in W.O.’s removal or the reasons for her

placement outside the home will not be remedied.

[16] 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

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018 Page 7 of 10 probability of future neglect or deprivation. Id. Habitual conduct may include

a parent’s 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),

trans. denied. 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 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.

[17] Here, our review of the evidence reveals that W.O. was removed from Mother

because of Mother’s drug use and unstable housing. W.O. could not be placed

with Father at that time because of his unstable housing and subsequent drug-

related arrest. Although DCS allowed W.O. to return to Mother’ home for a

trial placement in March 2017, shortly thereafter, Mother stopped participating

in court-ordered programs and refused to allow DCS case managers or the

CASA to see W.O. Mother also allowed Father, who was only allowed

supervised visitation with W.O, to have unsupervised contact with his

daughter. In July 2017, Mother tested positive for methamphetamine, and

DCS removed W.O. from her home. Father tested positive for Spice in

September 2017, and both Mother and Father refused to submit to drug screens

from the end of September through the end of October. They both also tested

positive for amphetamines and methamphetamine in November 2017, just three

months before the termination hearing. Both parents have refused to

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018 Page 8 of 10 acknowledge and treat the substance abuse problems that led to the removal of

their daughter. This evidence supports the trial court’s conclusion that there

was a reasonable probability that the conditions that resulted in W.O.’s removal

would not be remedied. We find no error.

[18] Next, Mother and Father both argue that there is insufficient evidence that the

termination was in W.O.’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 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).

[19] Here, our review of the evidence reveals that FCM Brouillette and CASA

Hayman both testified that termination was in W.O.’s best interests because she

needed stability and permanency. W.O. has lived with paternal grandmother

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018 Page 9 of 10 for more than two years and has bonded with her. The plan is for paternal

grandmother to adopt W.O., who should not have to wait any longer for her

parents to acknowledge and seek treatment for their drug problems. The

testimony of these service providers, as well as the other evidence previously

discussed, supports the trial court’s conclusion that termination was in W.O.’s

best interests.

[20] 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 Cty. 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.

[21] Affirmed.

Najam, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018 Page 10 of 10