In the Matter of the Involuntary Termination of the Parent-Child Relationship of K.D. (Minor Child) and K.G. (Father) and N.B. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Mar 31 2020, 10:21 am
regarded as precedent or cited before any
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
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary March 31, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of K.D. (Minor 19A-JT-2545
Child) Appeal from the Orange Circuit
Court
and The Honorable Steven L. Owen,
Judge
K.G. (Father) and N.B.
Trial Court Cause No.
(Mother), 59C01-1804-JT-86
Appellants-Respondents,
v.
The Indiana Department of
Child Services,
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2545 | March 31, 2020 Page 1 of 15
Appellee-Petitioner
Crone, Judge.
Case Summary
[1] K.G. (“Father”) appeals the trial court’s order involuntarily terminating his
parental relationship with his minor child, K.D. (“Child”). Finding that he has
failed to establish clear error, we affirm.
Facts and Procedural History
[2] The facts most favorable to the judgment are as follows. In July 2015, N.B.
(“Mother”) gave birth to Child. 1 Indiana Department of Child Services
(“DCS”) received a report from the hospital that Mother had tested positive for
THC. Mother admitted to using methadone and marijuana, and Child’s
meconium screen was positive for marijuana. Mother agreed to participate in
an informal adjustment program. In September 2015, DCS removed Child
from Mother’s care on an emergency basis due to allegations of Mother’s drug
use, housing instability, and failure to follow the recommendations of the
informal adjustment.
1
Mother’s parental rights also were terminated, but she is not participating in this appeal. As such, we refer
to Mother only where relevant to our discussion concerning Father.
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[3] In October 2015, DCS filed a petition seeking to have Child adjudicated a child
in need of services (“CHINS”). A November 2015 DNA test identified Father
as Child’s biological father. Father had not had any relationship with Child up
to that point. DCS Family Case Manager (“FCM”) Penny Deon testified that
Father told her he was “homeless,” “wasn’t sure where he was going to be,”
and “didn’t have a phone.” Tr. Vol. 2 at 85. He also admitted that he used
illegal substances. In December 2015, DCS set up services for Father, which
included submitting to random drug screens and participating in a clinical
assessment, home-based case work, a substance use disorder assessment, and
supervised visitation. FCM Robin Brown testified that between December 15,
2015, and March 9, 2016, Father attended six visits with Child and canceled or
failed to show up for five visits. 2 Id. at 118.
[4] In January 2016, Child was placed in relative care with her paternal aunt and
her husband, where she has remained since. Both Father and Mother admitted
to the CHINS allegations, and in March 2016, the trial court adjudicated Child
a CHINS. In its August 2016 dispositional order, the trial court ordered Father
to maintain a stable and legal source of income, start/continue the services
already in place such as a drug treatment program, maintain contact with DCS,
refrain from committing domestic violence, and attend all supervised visitation
sessions. Meanwhile, as of spring 2016, Father was incarcerated for drug
2
Several progress reports issued during the pendency of the CHINS proceedings indicate that Father
attended three out of four scheduled supervised visits with Child, with the last one being in January 2016.
The reason for this discrepancy is unclear.
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offenses. He was referred for services inside the Department of Correction
(“DOC”), but the services were discontinued. During his times outside the
DOC, Father did not complete the ordered services. Father remained in prison
until February 2018. After his release, he met with FCM Amanda Bills to
discuss services and visitation. He was re-incarcerated a week later and was
released in June 2018.
[5] Meanwhile, in May 2018, DCS changed the permanency plan to adoption and
filed a petition to terminate Mother’s and Father’s parental rights. Father had
not seen Child since early 2016 and had not completed his court-ordered
services. After his June 2018 release, he did not contact DCS about services or
visitation. FCM Bills testified that she had tried to reach him at the phone
number he provided but was unsuccessful. The termination proceedings were
continued several times, and the factfinding hearing was eventually conducted
on September 30, 2019. At that time, Father was living in a halfway house and
had a job. He had not visited Child and had not completed services. Service
providers testified at the factfinding hearing that Child was bonded with her
preadoptive relatives and that DCS’s plan of termination and adoption was in
Child’s best interests. On October 7, 2018, the trial court issued an order with
findings of fact and conclusions thereon terminating Mother’s and Father’s
parental relationships with Child. Father now appeals. Additional facts will be
provided as necessary.
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Discussion and Decision
[6] Father asserts that the evidence is insufficient to support the termination of his
parental rights. When reviewing a trial court’s findings of fact and conclusions
thereon in a case involving the termination of parental rights, we first determine
whether the evidence supports the findings and then whether the findings
support the judgment. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We will set
aside the trial court’s judgment only if it is clearly erroneous. Bester v. Lake Cty.
Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A judgment is
clearly erroneous if the findings do not support the trial court’s conclusions or
the conclusions do not support the judgment.” In re A.G., 45 N.E.3d 471, 476
(Ind. Ct. App. 2015), trans. denied (2016). Unchallenged findings stand as
proven, and we simply determine whether the unchallenged findings are
sufficient to support the judgment. T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d
104, 110 (Ind. Ct. App. 2012), trans. denied; see also McMaster v. McMaster, 681
N.E.2d 744, 747 (Ind. Ct. App. 1997) (unchallenged findings are accepted as
true). In conducting our review, we neither reweigh evidence nor judge witness
credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the evidence and
inferences most favorable to the judgment. Id. “[I]t is not enough that the
evidence might support some other conclusion, but it must positively require
the conclusion contended for by the appellant before there is a basis for
reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).
[7] “Parents have a fundamental right to raise their children—but this right is not
absolute. When parents are unwilling to meet their parental responsibilities,
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their parental rights may be terminated.” Matter of Ma.H., 134 N.E.3d 41, 45-46
(Ind. 2019) (citation omitted). To obtain a termination of a parent-child
relationship, DCS is required to establish in pertinent part:
(A) that one (1) of the following is true:
….
(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.
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Ind. Code § 31-35-2-4(b)(2).
[8] In recognition of the seriousness with which we address parental termination
cases, Indiana has adopted a clear and convincing evidence standard. Ind.
Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367,
377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need
not reveal that the continued custody of the parents is wholly inadequate for the
child’s survival. Rather, it is sufficient to show by clear and convincing
evidence that the child’s emotional and physical development are threatened by
the respondent parent’s custody.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.
2013) (citation omitted). “[I]f the court finds that the allegations in a
[termination] petition … are true, the court shall terminate the parent-child
relationship.” Ind. Code § 31-35-2-8(a) (emphasis added).
Section 1 – Father has failed to establish that the trial court
clearly erred in concluding that there is a reasonable
probability that the conditions that resulted in Child’s removal
will not be remedied.
[9] Father asserts that the trial court clearly erred in concluding that a reasonable
probability exists that the conditions that led to Child’s removal will not be
remedied. When assessing whether there is a reasonable probability that
conditions that led to a child’s removal will not be remedied, we must consider
not only the initial basis for the child’s removal but also the bases for continued
placement outside the home. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App.
2005), trans. denied. Moreover, “the trial court should judge a parent’s fitness to
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care for his children at the time of the termination hearing, taking into
consideration evidence of changed conditions.” In re J.T., 742 N.E.2d 509, 512
(Ind. Ct. App. 2001), trans. denied. “Due to the permanent effect of termination,
the trial court also must evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” Id. In
making its case, “DCS need not rule out all possibilities of change; rather, [it]
need establish only that there is a reasonable probability that the parent’s
behavior will not change.” In re Kay.L., 867 N.E.2d 236, 242 (Ind. Ct. App.
2007). The court may properly consider evidence of a parent’s substance abuse,
criminal history, lack of employment or adequate housing, history of neglect,
and failure to provide support. McBride v. Monroe Cty. Office of Family & Children,
798 N.E.2d 185, 199 (Ind. Ct. App. 2003).
[10] The conditions that formed the basis for Child’s initial removal were Mother’s
drug use and neglect and Child’s positive test at birth for THC. Father entered
the proceedings when his paternity was established. During the CHINS
proceedings, Father was ordered to maintain contact with DCS and to notify
the FCM of changes in his phone number, address, and other information
critical to maintaining contact. He also was required to participate in a
substance abuse assessment and intensive family preservation and drug
treatment, attend all scheduled visitation sessions, secure and maintain suitable,
safe, and stable housing, secure and maintain a stable source of income, and
obey the law. FCM Bills testified that DCS was unable to provide services for
Father when he was incarcerated.
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[11] Father specifically challenges the sufficiency of the evidence to support the
following findings:
32. Father failed to participate in the Substance Use Disorder
Assessment.
….
39. Father failed to provide weekly drug screens for DCS.
Father provided three (3) drug screens for FCM Amanda Bills in
over three (3) years.
40. Father did not engage in or successfully complete any
program to address his substance use during more than three (3)
years of Father’s involvement in the CHINS case.
Appealed Order at 4.
[12] Father is correct concerning finding 32, as the record indicates that he
participated in a substance abuse assessment while in the Martin County jail.
With respect to finding 40, there is no indication that Father ever underwent a
drug treatment program despite having completed an assessment. As for
finding 39, the record shows that he had four positive screens between
November 2015 and May 2016 and a negative screen on his first release from
the DOC in February 2018. That said, the first sentence of finding 39 is, in fact,
correct in that Father did not provide weekly drug screens.
[13] Father maintains that the trial court merely relied on his historical failures and
did not consider his parenting ability as of the time of the factfinding hearing.
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He relies on In re C.M., 960 N.E.2d 169, 175 (Ind. Ct. App. 2011), where
another panel of this Court reasoned,
the court’s focus on historical conduct, absent factual findings as
to Mother’s current circumstances or evidence of changed
conditions, is akin to terminating parental rights to punish the
parent. And, without more, the findings are insufficient to
establish each element necessary to support the conclusion that
termination is warranted in this case.
[14] The trial court did not simply rely on Father’s 2016 patterns of conduct but also
took into consideration his current circumstances. See Appealed Order at 4
(unchallenged finding 41: “Father has failed to address the instability in his life
as demonstrated by his recurring incarcerations, lack of stable housing, and
admitted substance use.”). During the hearing, the court acknowledged
Father’s stable housing at the time of the factfinding hearing but also noted that
it was a halfway house, where Child was not allowed. We are mindful that
Father’s incarceration placed certain limitations on DCS’s ability to provide
him services. However, fifteen months elapsed between Father’s second release
from the DOC and the factfinding hearing, and there is absolutely no evidence
that that he engaged in any treatment or parenting programs during that time.
To the extent that he blames DCS, we remind him that DCS is not statutorily
required to provide parents with services prior to seeking termination of the
parent-child relationship. In re T.W., 135 N.E.3d 607, 612 (Ind. Ct. App. 2019),
trans. denied (2020). Nevertheless, FCM Bills attempted to contact Father
following his second release and asked him for his phone number at a court
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hearing; yet, she was unsuccessful in reaching him at the number provided. Tr.
Vol. 2 at 169. Father knew the location and phone number of DCS’s office but
did not contact FCM Bills. He now essentially claims that there was nothing he
could do once the permanency plan changed to adoption and termination. The
protraction of the proceedings due to continuances meant that Father could
have taken the initiative to enter a substance abuse treatment program or
requested supervised visitation. He could have taken steps in the interim but
did not. Simply put, Father has failed to establish that the trial court clearly
erred in concluding that there is a reasonable probability that the conditions that
led to Child’s removal will not be remedied.
Section 2 – Father has failed to establish that the trial court
clearly erred in concluding that termination is in Child’s best
interests.
[15] Father also challenges the trial court’s conclusion that termination of the
parent-child relationship is in Child’s best interests. To determine what is in the
best interests of a child, we must look at the totality of the circumstances. In re
A.W., 62 N.E.3d 1267, 1275 (Ind. Ct. App. 2016). The trial court “need not
wait until a child is irreversibly harmed before terminating the parent-child
relationship.” S.E. v. Ind. Dep’t of Child Servs., 15 N.E.3d 37, 47 (Ind. Ct. App.
2014), trans. denied. Although not dispositive, permanency and stability are key
considerations in determining the child’s best interests. In re G.Y., 904 N.E.2d
1257, 1265 (Ind. 2009). “A parent’s historical inability to provide a suitable
environment along with the parent’s current inability to do the same supports a
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finding that termination of parental rights is in the best interests of the
children.” In re A.P., 981 N.E.2d 75, 82 (Ind. Ct. App. 2012) (quoting Lang v.
Starke Cty. Office of Family & Children, 861 N.E.2d 366, 373 (Ind. Ct. App. 2007),
trans. denied). Likewise, “the testimony of service providers may support a
finding that termination is in the child’s best interests.” In re A.K., 924 N.E.2d
212, 224 (Ind. Ct. App. 2010), trans. dismissed.
[16] Here, FCM Bills testified at length concerning her reasons for recommending
termination and adoption as the best plan for Child. She emphasized the
extensive period of time that Mother and Father had been given to address their
issues and contrasted the strong bond that Child has developed with her
preadoptive relatives. She described her three-and-a-half-year observations of
Child in her current placement as follows:
[W]hen you come in it looks like a normal parent-child
relationship because to her it is. That is what she has always
known … she is the smartest four year old I have ever met and I
feel that she thrives in the placement environment that … she is
nurtured, she is, she seeks their approval and when she gets it she
glows [], she responds to discipline more, I guess better than she
used to now that we’ve kind of put those services in place to help
with that because like I said she definitely ruled the roost for a
while there. She, she grows, she thrives. I’ve had that opportunity
to see her grow from an infant to a four year old and she’s
meeting all of her developmental milestones and you know,
she’s, she has been able to grow and thrive in that home and she
truly does see it as a home.
Tr. Vol. 2 at 161.
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[17] Court appointed special advocate (“CASA”) Margaret McGirt also testified
that termination of Father’s rights and adoption by relative placement is in
Child’s best interests. She, too, emphasized that the preadoptive relatives are
the only family that Child has ever known and that they have given her stability
that Father cannot provide. The trial court specifically found CASA McGirt’s
testimony to be credible, Appealed Order at 5, and we cannot reassess witness
credibility. E.M., 4 N.E.3d at 642.
[18] We reject Father’s argument that the trial court improperly terminated his rights
based solely on evidence that preadoptive relatives can provide a “better” home
for Child. See In re R.A., 19 N.E.3d 313, 321 (Ind. Ct. App. 2014) (mere fact
children are in better home cannot be sole basis for termination), trans. denied
(2015). As discussed, evidence concerning Father’s failure to maintain contact
with DCS so that he could complete services and engage in visitation after his
release from incarceration and the professional opinions of the service providers
is sufficient to show that the trial court did not base its decision on a mere
preference between Father and the preadoptive relatives. Father’s failure to
exercise his visitation rights when he was able to do so indicates a lack of
commitment to the parent-child relationship and the plan to preserve it. See
Lang, 861 N.E.2d at 372 (failure to exercise right to visit one’s children
demonstrates lack of commitment to complete actions necessary to preserve
parent-child relationship).
[19] Father also claims that “there is no reason to rush the termination process” and
asks that Child be continued in her relative placement under a guardianship so
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that he may be afforded more time to prove that he is earnest in his desire to
parent her. Appellant’s Br. at 20. He relies on In re R.S., where our supreme
court stated, “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.” 56 N.E.3d 625, 630
(Ind. 2016). However, in R.S., there was ample evidence of the father’s
consistent efforts at visiting the child even up to the time of the factfinding
hearing. Id. Not so here, as Father has not visited Child since before his 2016
incarceration and has simply deflected and cast blame on DCS for his lack of
effort to maintain contact with DCS and Child since he was released from the
DOC in June 2018. Moreover, FCM Bills testified that Father had threatened
and pressured the preadoptive parents to accept a guardianship and that as a
result, the preadoptive parents did not consider a guardianship arrangement to
be safe. Tr. Vol. 2 at 170. Additionally, in considering the totality of the
circumstances, we cannot ignore the protracted nature of these proceedings,
which extended from early 2016 (Father’s last visit) through the September
2019 factfinding hearing. This amounts to three and a half of the first four years
of Child’s life and portends an increase in potential trauma associated with
waiting even longer to remove her from the only home she has ever known.
Child has waited long enough and need not wait indefinitely for Father to turn
his life around. See S.E., 15 N.E.3d at 47 (trial court “need not wait until a
child is irreversibly harmed before terminating the parent-child relationship.”).
Father has failed to demonstrate that the trial court clearly erred in concluding
that termination is in Child’s best interests.
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[20] Finally, we acknowledge Father’s concern that his parental rights should not be
terminated solely on the basis of his incarceration. Our supreme court has
emphasized that incarceration is an insufficient basis upon which to terminate a
parent’s rights. K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 644 (Ind. 2015)
(citing In re G.Y., 904 N.E.2d at 1264-66). However, the record here clearly
shows that the trial court examined the totality of the circumstances and did not
rely solely on what Father did not or could not do as a result of his
incarceration but also on what he failed to do when he was not incarcerated.
We find significant unchallenged finding 33, which states that Father’s only
participation in services occurred when he was incarcerated. Appealed Order at
4. Based on the foregoing, we conclude that Father has failed to demonstrate
that the trial court clearly erred in terminating his parental relationship with
Child. Accordingly, we affirm.
[21] Affirmed.
Bailey, J., and Altice, J., concur.
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