In the Termination of the Parent-Child Relationship of: Ne.K. & Ni.K. (minor children) and L.K. (Mother) v. Indiana Department of Child Services (mem. dec.)

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 12 2016, 7:56 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 ATTORNEYS FOR APPELLEE Jennifer G. Schlegelmilch Gregory F. Zoeller Bedford, Indiana Attorney General of Indiana

Robert J. Henke Deputy Attorney General

David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- December 12, 2016 Child Relationship of: Court of Appeals Case No. 47A04-1607-JT-1600 Ne.K. & Ni.K. (minor children) and L.K. (Mother), Appeal from the Lawrence Circuit Court Appellant-Respondent, The Honorable Andrea K. v. McCord, Judge The Honorable Robert L. Bennett, Indiana Department of Child Senior Judge Services, Trial Court Cause No. 47C01-1405-JT-139, 47C01-1405- Appellee-Petitioner. JT-140

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 1 of 14 Case Summary

[1] L.K. (Mother) appeals the involuntary termination of her parental rights to

Ne.K. and Ni.K. (the Children). Mother challenges the sufficiency of the

evidence supporting the termination.

[2] We affirm.

Facts & Procedural History

[3] Mother has two children, Ni.K. born in March 2004 and Ne.K born in March

2005. Father is not involved in the Children’s lives.1 The Lawrence County

Department of Child Services (DCS) became involved with Mother and the

Children on or about January 1, 2013, after receiving a report that Mother had

been the victim of severe domestic violence. At the time of the report, Mother

and the Children were living with Mother’s abuser. Although the Children did

not directly witness the incident because they were in another part of the house,

they heard the commotion and saw Mother “all bloody”. State’s Exhibit 12 at 3.

Mother was treated at a local hospital for injuries to her head, face, shoulder,

back, and knee. Mother’s abuser was arrested and a no-contact order was

issued.

[4] Upon leaving the hospital, Mother and the Children went to Indianapolis to

stay with Mother’s father. Mother returned to her abuser’s home the following

1 The trial court also terminated father’s parental rights, but he does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 2 of 14 day so that she would not be in violation of her probation.2 Despite the no-

contact order, Mother’s abuser had been back to his home on several occasions

while Mother and the Children were there. A Family Case Manager (FCM)

spoke with the Children and they expressed fear over being in the house with

Mother’s abuser and that they felt unsafe. The Children described other

incidents between Mother and her abuser and recounted how Mother’s abuser

would use a boat paddle to punish them and that it would “hurt really badly.”

Id. at 4. Several days after the incident, Mother changed her story, claiming

that other individuals “beat her up.” Id. at 3. Although Mother admitted that

her abuser had threatened to kill her and the Children, she continued to insist

that she and the Children were safe in his presence.

[5] On January 9, 2013, the Children were removed from Mother’s care and placed

with a foster family because Mother refused to enter into a safety plan for their

protection. The following day, DCS filed petitions alleging the Children to be

children in need of services (CHINS). At a fact-finding hearing on March 21,

2013, Mother admitted the Children were CHINS due to substance abuse and

domestic violence issues.3 By the time of the hearing, Mother had already

completed an evaluation and was participating in counseling.

2 Mother was on probation for possession of marijuana out of another county. 3 Mother has a history of being involved in abusive relationships. In June 2010, Mother’s then-boyfriend choked her and punched her. At the time of that incident, Mother’s boyfriend had a restraining order against Mother.

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 3 of 14 [6] A dispositional hearing was held on April 24, 2013. DCS presented evidence

that Mother was regularly visiting Children three times a week, but was

intermittent with her participation in case-management services. Although

DCS was not yet performing drug screens, the probation department reported

that Mother was “testing positive.” Id. at 15. DCS indicated that the primary

focus at that time was to help Mother secure an adequate home and source of

income. The permanency plan remained reunification of Mother and the

Children. The court’s dispositional order required Mother to, among other

things, communicate with and follow directions of her FCM and other service

providers, maintain suitable, safe, and stable housing, secure and maintain a

legal and stable source of income, assist in the formulation and implementation

of a plan to protect the Children from abuse or neglect, refrain from using drugs

or alcohol, submit to random drug screens, and comply with the no-contact

order.

[7] In May 2013, some case-management services were put on hold due to a lack of

consistent participation by Mother. Mother, however, continued to visit with

the Children. At a July 24, 2013 review hearing, a FCM reported that things

were “moving slowly.” Id. at 29. Of concern was that Mother had informed

DCS that she was engaged to her abuser and that she was not going to move

from his home. Indeed, the day before the hearing, Mother sent a letter to the

court requesting that the no-contact order “be dropped” because it was “not

right for him [her abuser] to be away from his own home.” DCS Exhibit 15.

Mother also informed DCS that she no longer wished to work with a home-

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 4 of 14 based case worker. It was further noted that two home-based caseworkers had

asked to be taken off Mother’s case due to intimidation by Mother.

[8] Against the requirements of the dispositional order, Mother remained in her

abuser’s home for several more months. During this timeframe, she

participated regularly in supervised visits with the Children, showing up

prepared and on time. At a December 19, 2013 review hearing, the court

approved the DCS’s continuing plan for reunification, finding that “appropriate

progress continue[d] to be made.” Transcript at 43.

[9] In January 2014, Mother sent a second letter in which she informed DCS and

the court that her abuser “threw [her] out” of his home and that she had moved

to Indianapolis. DCS Exhibit 14. Mother also asserted that her move to

Indianapolis was to protect herself and “get [her] children home from foster

care.” Id. On account of her move, Mother requested that her case be

transferred to Indianapolis. DCS denied Mother’s request, but took steps to

transfer some services to Indianapolis providers.

[10] Toward the end of January 2014, Mother stopped visiting with the Children

because she did not have a driver’s license and could not otherwise obtain

transportation. Eventually, visits were reinstated in February 2014 after DCS

arranged for the Children to be transported to Indianapolis once a week.

Mother was advised that if she wanted additional visits with the Children, she

had to meet halfway or find transportation from Indianapolis to Bedford to visit

the Children.

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 5 of 14 [11] After her move to Indianapolis, Mother initially secured a four-bedroom house

in which to live. In April 2014, Mother was referred to Midwest Psychological

Services, where she participated in relapse prevention services, domestic

violence counseling, and services to develop parenting skills. Mother, however,

continued to use marijuana and drink alcohol and was very forthcoming with

her counselor about her substance abuse as she did “not really see[] it as a

problem.” Transcript at 192. Over the course of a few months, Mother

accumulated eleven positive screens for THC and one positive screen for

oxycodone.

[12] Despite the fact that the permanency plan at the time remained reunification,

DCS filed a petition for termination of Mother’s parental rights (TPR Petition)

in May 2014. A combined CHINS review hearing and initial hearing on the

TPR petition was held on October 22, 2014. During the hearing, FCM Barbara

Emmons noted that Mother’s continued substance abuse was a barrier to

reunification. The court also took note of a statement from the Children in

which they indicated they were “ready to move on.” Id. at 90. The court thus

approved the change to the permanency plan from reunification to adoption by

the foster family with whom the Children were residing. Based on the

testimony of FCM Emmons, the court agreed that, but for a “goodbye visit,”

visitation between Mother and the Children should cease. Id. at 82. Mother

has not visited with the Children since November 2014.

[13] At a January 7, 2015 permanency hearing, it was noted that at some point after

the October 22 hearing, Mother was evicted from her home and forced to move

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 6 of 14 into a one-bedroom apartment, which she shared with her new boyfriend.

Mother had also reported that she had been involved in a domestic violence

incident with her boyfriend. Because Mother was the abuser in that incident,

she was arrested. After her release, Mother was not permitted back in the home

due to a protective order. FCM Emmons testified that Mother’s participation

in services had all but ceased since the October 22 hearing, thereby resulting in

the referral for services being closed out in January 2015. Mother did not

appear in person for subsequent permanency hearings in April, July, and

November 2015.

[14] The court held an evidentiary hearing on the TPR petition on December 14,

2015, January 14, 2016, and March 10, 2016. The court issued its order,

including findings of fact and conclusions of law, terminating Mother’s parental

rights on June 10, 2016. Mother now appeals. Additional facts will be

provided as necessary.

Discussion & Decision

[15] When reviewing the termination of parental rights, 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 most favorable to the judgment. Id. In deference to

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

judgment terminating a parent-child relationship only if it is clearly erroneous.

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 7 of 14 In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

evidence and inferences support the decision, we must affirm. Id.

[16] The trial court entered findings in its order terminating Mother’s parental rights.

When the trial court enters specific findings of fact and conclusions thereon, we

apply a two-tiered standard of review. 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. “Findings are clearly erroneous only when the

record contains no facts to support them either directly or by inference.” Quillen

v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

only if the findings do not support the court’s conclusions or the conclusions do

not support the judgment thereon. Id.

[17] We recognize that the traditional right of parents to “establish a home and raise

their children is protected by the Fourteenth Amendment of the United States

Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

Although parental rights are of constitutional dimension, the law provides for

the termination of these rights when parents are unable or unwilling to meet

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

2008). In addition, a court must subordinate the interests of the parents to those

of the child when evaluating the circumstances surrounding the termination. In

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

parental rights is not to punish the parents, but to protect their children. Id.

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 8 of 14 [18] Before an involuntary termination of parental rights may occur in Indiana, DCS

is required to allege and prove by clear and convincing evidence, 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[.]

Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

evidence that termination is in the best interests of the children and that there is

a satisfactory plan for the care and treatment of the children. I.C. § 31-35-2-

4(b)(2)(C), (D).

[19] Additionally, DCS need not provide evidence ruling out all possibilities of

change; rather, it need establish only that there is a reasonable probability the

parent’s behavior will not change. In re Involuntary Termination of Parent-Child

Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “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.”

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 9 of 14 In re E.M., 4 N.E.3d at 643. Although trial courts are required to give due

regard to changed conditions, this does not preclude them from finding that a

parent’s past behavior is the best predictor of their future behavior. Id.

[20] On appeal, Mother argues that the evidence is insufficient to support the

involuntary termination of her parental rights. Mother does not challenge any

of the court’s findings of fact, but rather challenges only the court’s conclusions

that the reasons for placement outside the home would not be remedied and

that termination was in the Children’s best interests.

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

led to a child’s removal and continued placement outside the home will be

remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what conditions

led to the child’s placement and retention in foster care, and, second, we

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. In the second step, the trial 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.3d

636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). In doing so, the

court may consider the parent’s history of neglect and response to services

offered through DCS. McBride v. Monroe Cnty. Office of Family & Children, 798

N.E.2d 185, 199 (Ind. Ct. App. 2003). “A pattern of unwillingness to deal with

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 10 of 14 parenting problems and to cooperate with those providing social services, in

conjunction with unchanged conditions, support a finding that there exists no

reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d

at 210.

[22] Based on its findings of fact, which are amply supported by the record, the trial

court made the following conclusions:

The Mother has failed to remedy any of the conditions that led to the removal of the Children and continued placement outside of the home.

During the course of the CHINS case, she chose to continue to engage in abusive relationships, abuse illegal substances and engage in criminal behavior instead of participating in services offered and demonstrating her ability to fulfill her obligations as a parent. The Mother has failed or refuses to take the steps necessary to protect her children from being exposed to the drugs, violence and crime.

The Mother has a history of violent relationships, substance abuse and criminal behavior. She has a history of and continues to live with boyfriends/roommates instead of securing stable housing of her own. Her living arrangements with these boyfriends/roommates at times before, during and after the removal of the children, have all involved incidents of severe domestic violence.

The Mother’s continued pattern of behavior, including substance abuse, violent domestic relationships, housing instability and lack of income sufficient to support the [C]hildren, together with her failure to demonstrate she has benefitted from any of the services offered or provided in an effort to reunite her with her children,

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 11 of 14 compel the Court to conclude that there is a reasonable probability that the conditions resulting in the [C]hildren’s removal will not be remedied. The Court is further of the opinion that such evidence additionally establishes that termination of parental rights is in the [C]hildren’s best interest and that continuation of the parent-child relationship poses a threat to the [C]hildren’s wellbeing.

The Court does not need to and should not wait until the Mother’s deficient lifestyle causes irreversible harm to the [C]hildren’s mental, physical or social development before terminating the parent-child relationship.

Appellant’s Appendix at 99-100.

[23] As recognized by the court, domestic violence triggered DCS involvement and

remained a concern throughout these proceedings. Indeed, Mother has a

history of being involved in relationships plagued with domestic violence. The

record also establishes that Mother continues to have issues with substance

abuse, testing positive for THC on every drug-screen. Additionally, the record

supports the court’s conclusion that Mother failed to maintain a stable, safe

residence in that she chose to live with her abuser for a period of time and

thereafter was evicted from at least one residence for unspecified reasons.

Although Mother engaged in some services, her participation was inconsistent

and eventually led to the services being terminated. During a time when

Mother seemed to be progressing, her therapist estimated that Mother had

completed forty-five percent of the services offered before she stopped

participating. Mother has not established that the trial court’s conclusion that

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 12 of 14 there is a reasonable probability that the conditions or reasons for placement

outside the home would not be remedied is clearly erroneous.

[24] Mother also challenges the court’s conclusion that termination is in the

Children’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 beyond the

factors identified by DCS and consider the totality of the evidence. In re J.C.,

994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court must

subordinate the interest of the parent to those of the child, and the court need

not wait until a child is irreversibly harmed before terminating the parent-child

relationship. McBride, 798 N.E.2d at 199. “Moreover, we have previously held

that the recommendations of the case manager and court-appointed 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[ren]’s best interests.” In re J.S., 906

N.E.2d 226, 236 (Ind. Ct. App. 2009).

[25] Here, both the FCM and the Court Appointed Special Advocate testified that

they believed termination was in the best interests of the Children. Both of

these service providers indicated that Mother had not made sufficient positive

change for the safety of the Children. By the conclusion of the termination

hearing, the Children had been removed from Mother’s care for over three

years. In that time, the Children thrived in the home of their foster parents,

who now desire to adopt them. The Children, now eleven and twelve years

old, “seem[] excited about having permanency and getting adopted” by their

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 13 of 14 foster parents. Transcript at 218. The trial court’s conclusion that termination is

in the best interests of the Children is not clearly erroneous.

[26] Judgment affirmed.

[27] Bradford, J. and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016 Page 14 of 14