In the Matter of the Involuntary Termination of the Parent-Child Relationship of K.G. and X.G. (Minor Children) and K.W. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Apr 06 2020, 9:50 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
Megan E. Shipley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Frances H. Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary April 6, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of K.G. and X.G. 19A-JT-2516
(Minor Children) Appeal from the Marion Superior
and Court
The Honorable Marilyn A. Moores,
K.W. (Mother), Judge
Appellant-Respondent, The Honorable Scott B. Stowers,
Magistrate
v.
Trial Court Cause Nos.
49D09-1902-JT-191
The Indiana Department of 49D09-1902-JT-192
Child Services,
Appellee-Petitioner.
Bailey, Judge.
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Case Summary
[1] K.W. (“Mother”) appeals the termination of her parental rights to K.G. and
X.G. (“Children”), upon the petition of the Marion County Department of
Child Services (“DCS”). Mother presents a single issue for review: whether
DCS established, by clear and convincing evidence, the requisite statutory
elements to support the termination decision. We affirm.
Facts and Procedural History
[2] On October 17, 2017, Children were removed from Mother’s care upon DCS
allegations that Children were Children in Need of Services (“CHINS”) due to
a lack of stable housing, parental substance abuse, and domestic violence.
Children were placed with R.E., the paternal grandmother of Mother’s eldest
child.1
[3] On January 31, 2018, Mother admitted that Children were CHINS, due to
Mother’s need for assistance in providing a home free from substance abuse and
domestic violence. On February 28, 2018, the CHINS court entered a parental
participation order. Mother was ordered to undergo a substance abuse
assessment and treatment, submit to random drug screens, and participate in
1
Mother had three children by two different fathers. Children’s father is J.G. He has signed a consent to
termination of his parental rights and is not an active party to this appeal. Mother’s eldest child was also
removed from Mother’s care, but she was placed with her father and is not a subject of this termination
proceeding.
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home-based case management and domestic violence services. At the CHINS
hearing conducted on October 1, 2018, Mother reported that she had not yet
engaged in substance abuse services because they were provided on the other
side of town.
[4] Mother intermittently visited with Children and had some minimal
involvement with other services. Over time, Mother was unsuccessfully
discharged from participation in intensive outpatient substance abuse therapy,
home-based services, and parenting time sessions. Mother was apparently
homeless at times, and sometimes lived with friends or a boyfriend. Her
whereabouts were frequently unknown to DCS, or to her attorney.
[5] On February 8, 2019, DCS petitioned to terminate Mother’s parental rights to
Children. A termination hearing, at which Mother did not appear, was
conducted on August 29, 2019. On September 26, 2019, the trial court issued
its findings, conclusions thereon, and order terminating Mother’s parental
rights. She now appeals.
Discussion and Decision
Standard of Review – Sufficiency of the Evidence
[6] When we review whether the termination of parental rights is appropriate, we
will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d
1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable
inferences that are most favorable to the judgment. Id. In so doing, we give
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“due regard” to the trial court’s unique opportunity to judge the credibility of
the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010) (citing Indiana
Trial Rule 52(A)). We will set aside the trial court’s judgment only if it is
clearly erroneous. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229
(Ind. 2013). In order to determine whether a judgment terminating parental
rights is clearly 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. I.A., 934 N.E.2d at
1132.
Requirements for Involuntary Termination of Parental Rights
[7] “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re
Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are
of a constitutional dimension, the law provides for the termination of those
rights when the parents are unable or unwilling to meet their parental
responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143,
147 (Ind. 2005). The State is required to prove that termination is appropriate
by a showing of clear and convincing evidence, a higher burden than
establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.
[8] Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must
allege and prove by clear and convincing evidence to terminate a parent-child
relationship:
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(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 local office 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.
(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.
[9] Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and
therefore the court need only to find that one of the three requirements of
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subsection (b)(2)(B) was established by clear and convincing evidence. See In re
L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).
Analysis
[10] Mother contends that insufficient evidence supports the termination decision.
She does not challenge the sufficiency of the evidence to establish that Children
have been removed from the home for the requisite statutory period and there
exists a satisfactory plan for their care and treatment. However, she contends
that the DCS failed to present clear and convincing evidence of a reasonable
probability that she would fail to remedy the conditions that led to Children’s
removal, that continuation of the parental relationship poses a threat to
Children, and termination is in Children’s best interests.
[11] As for determining the sufficiency of the evidence regarding remediation of
conditions, this invokes a “two-step analysis.” In re E.M., 4 N.E.3d 636, 643
(Ind. 2014). First, we identify the conditions that led to removal; and second,
we must determine whether there is a reasonable probability that those
conditions will not be remedied. Id. In the second step, the trial court must
judge parental fitness as of the time of the termination hearing, taking into
consideration the evidence of changed conditions. Id. (citing Bester, 839 N.E.2d
at 152). The trial court is entrusted with balancing a parent’s recent
improvements against habitual patterns of conduct. Id. The trial court 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
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changed conditions does not preclude them from finding that parents’ past
behavior is the best predictor of their future behavior.” Id.
[12] 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), trans. denied. The trial court may also consider the
services offered to the parent by DCS and the parent’s response to those services
as evidence of whether conditions will be remedied. In re B.D.J., 728 N.E.2d
195, 201 (Ind. Ct. App.2000).
[13] Children were removed from Mother’s care due to the lack of stable housing,
substance abuse, and domestic violence. With the objective of assisting Mother
in remedying those conditions, DCS made referrals so that Mother could work
with a home-based counselor on housing and employment, undergo substance
abuse and domestic violence assessments with a licensed mental health
counselor, and participate in intensive outpatient therapy for substance abuse.
Mother was historically non-compliant with those services.
[14] Tamara Bowden (“Bowden”) testified that she had been retained to provide
home-based services to Mother. Bowden completed an intake interview with
Mother in May of 2019. She interviewed Mother on the porch of a friend’s
house because Mother did not have independent housing. Mother reported
having some work assisting a friend with installing windows. Bowden
anticipated meeting with Mother weekly with goals of achieving housing and
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stable employment. However, according to Bowden, there were “cancellations
[by Mother] all of the time” and Bowden discharged Mother from the program
without having any follow-up session to the intake. (Tr. Vol. II, pg. 66.)
[15] Megan McCully (“McCully”), a licensed mental health counselor, testified that
she had completed an assessment of Mother’s needs with regard to substance
abuse treatment and domestic violence counseling.2 She referred Mother to
group sessions of intensive outpatient therapy for substance abuse, with
domestic violence counseling to begin after the completion of the substance
abuse therapy. McCully testified that Mother attended two group sessions. At
one session, Mother provided a drug screen sample and, based upon that
screen, McCully recommended in-patient substance abuse treatment for
Mother. However, Mother never returned to the group sessions; thus, she did
not receive in-patient therapy, nor did she progress to domestic violence
counseling. Mother was unsuccessfully discharged from the sixteen-week
program.
[16] Daionah Jordan (“Jordan”) testified that she supervised visits between Mother
and Children. Jordan provided transportation to different public locations
because Mother did not have her own residence. Jordan testified that Mother
was inconsistent with visits, reporting to Jordan that her phone did not work,
but ultimately admitting that her addiction interfered with following through
2
Reportedly, Mother had been the victim of domestic violence; J.G. had choked Mother and she bit him to
make him let go of her.
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with visits. Although Mother and Children appeared to have a bond, and visits
were pleasant, the visits were decreased from twice weekly to once weekly.
This action was taken because missed visits caused sadness to Children, Mother
“wasn’t confirming for weeks at a time,” and the visits were “like a
rollercoaster.” Id. at 59. Eventually, Mother was unsuccessfully discharged
from the parenting time program.
[17] Family case manager Tiffany Watson (“Watson”) testified that Mother had not
maintained contact with DCS; accordingly, Watson lacked knowledge of
whether Mother had either employment or housing. Mother had last exercised
parenting time and last participated in drug screening sometime in 2018.
Mother had appeared at some CHINS proceedings, without reporting housing
or employment. Mother also attended a team meeting in June of 2018, but she
had walked out before the meeting concluded. Watson characterized Mother
as a “non-compliant” DCS client. Id. at 11.
[18] Based upon this evidence, the court concluded that none of the conditions
leading to Children’s removal were likely to be remedied. Mother argues that
this conclusion is not well-founded because the reported incident of domestic
violence is remote and Watson, as case manager, provided little or no evidence
of Mother’s current circumstances. The contention that any domestic violence
is remote and unlikely to reoccur is, at bottom, a request to reweigh the
evidence. Moreover, Mother’s argument ignores the testimony that little was
known about her current situation simply because Mother failed to maintain
contact with DCS, her attorney, or any service provider. She failed to provide
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regular or recent drug screens. See In re A.B., 924 N.E.2d 666, 671 (Ind. Ct.
App. 2010) (recognizing that a parent may not make herself unavailable for
services such as drug screening and then claim a lack of evidence of current
circumstances). There is sufficient evidence that conditions leading to
Children’s removal will not likely be remedied.
[19] The court also concluded that continuation of the parent-child relationships
would pose a threat to Children because it presented a barrier to the plan of
adoption. Because the controlling statute is written in the disjunctive, we need
not address whether there is sufficient evidentiary support for this conclusion.
In re L.S., 717 N.E.2d at 209.3
[20] Mother also contends that DCS failed to present clear and convincing evidence
that termination is in Children’s best interests. In determining what is in a
child’s best interests, the court must look to the totality of the evidence. In re
A.D.S., 987 N.E.2d at 1158. Mother failed to avail herself of the opportunities
afforded to her; the service providers uniformly testified that Mother was
inconsistent and non-compliant. Critically, she failed to address her use of
methamphetamines. On the other hand, family case manager Watson and
foster parent R.E. testified that Children were doing very well in their pre-
adoptive placement. The Court Appointed Special Advocate, who had visited
3
However, we acknowledge that parental rights may not be terminated solely because the court concludes
there is a better home for a child than the parental home. See In re V.A., 51 N.E.3d at 1151.
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with Children on eleven occasions over an eighteen-month period of time,
recommended termination of Mother’s parental rights.
[21] Mother argues that Children should be left longer in R.E.’s care without
termination of rights, as R.E. is the paternal grandmother of Mother’s oldest
child and may be willing to continue her role as a foster parent as opposed to
adoptive parent. In support of her contention, Mother directs our attention to
In re R.S., 56 N.E.3d 625 (Ind. 2016), where the Indiana Supreme Court
reversed a termination of parental rights after concluding that the State had
failed to prove that termination was in R.S.’s best interests. The Court
observed, “when a child is in relative placement, and the permanency plan is
adoption into the home where the child has lived for years already, prolonging
the adoption is unlikely to have an effect upon the child.” Id. at 630. The
Court also indicated that R.S.’s father had “repeatedly expressed his desire and
willingness to continue to develop as a person and a parent for R.S.” Id. The
facts of this case are readily distinguishable from the facts of R.S. By all
indications, Mother has been unable or unwilling to develop her skills as a
parent. There is ample evidence to support the trial court’s conclusion that
termination of Mother’s parental rights is in Children’s best interests.
Conclusion
[22] DCS presented sufficient evidence to support the termination decision.
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[23] Affirmed.
Crone, J., and Altice, J., concur.
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