In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.H. and K.K. (Minor Children) and S.H. (Father) and J.K. (Mother) v. 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 Aug 28 2020, 8:29 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 S.H. ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
ATTORNEY FOR APPELLANT J.K. David E. Corey
Deputy Attorney General
Roberta L. Renbarger
Indianapolis, Indiana
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary August 28, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of A.H. and K.K. 20A-JT-750
(Minor Children) Appeal from the Allen Superior
and Court
The Honorable Charles F. Pratt,
S.H. (Father) and J.K. (Mother), Judge
Appellants-Respondents, Trial Court Cause Nos.
02D08-1905-JT-288
v. 02D08-1905-JT-289
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Bailey, Judge.
Case Summary
[1] S.H. (“Father”) and J.K. (“Mother”) appeal1 the trial court’s judgments
terminating their parental rights to their children, A.H. and K.K (collectively
“Children”). They raise the following restated, consolidated issue on appeal:
whether the trial court clearly erred when it terminated their parental rights.
[2] We affirm.
Facts and Procedural History
[3] Father and Mother are the parents of A.H., born May 21, 2015, and K.K., born
December 19, 2016.2 In May of 2017, Father was charged with domestic
violence in the presence of Children as a Level 6 felony which resulted in a no-
contact order as to Mother. In July of 2017, the Indiana Department of Child
Services (“DCS”) received a report that: the family had been evicted from a
home that had no electricity or running water; they had then moved in with
family members who later “kicked them out of the home,” Tr. V. I at 56;
Mother was using illegal drugs; the children were dirty when they got to school;
Father had engaged in a “domestic altercation” with Mother in the presence of
1
We granted the State’s motion to consolidate the parents’ separate appeals.
2
The trial court mistakenly stated in its Appealed Order that K.K. was born on September 11, 2017.
Appealed Order at 1.
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Children, Ex. at 14, 15; and Father was “unable to remove [Children] from a
neglectful environment,” id. at 15. Mother informed DCS Family Case
Manager (“FCM”) Tana Selzer (“FCM Selzer”) that Mother and Children had
been living in a tent behind Children’s paternal grandfather’s (“Paternal
Grandfather”) house and were now living in a hotel. Mother stated that she
intended to pay for the hotel room that night with tips she would earn working
at a nightclub that evening. DCS removed Children and placed them in foster
care.
[4] On August 14, 2017, and September 10, 2017, DCS filed a Child in Need of
Services (“CHINS”) petition and amended CHINS petition, respectively.
Following a September 11 initial hearing, the trial court issued an Order finding
that Mother and Father admitted to the relevant allegations in the amended
CHINS petition, and the court concluded that Children were CHINS.
Specifically, Mother admitted Children were CHINS, and Father admitted
A.H. was a CHINS and admitted some allegations against him as to both
children. Ex. at 15, 53. Both parents were ordered, among other things, to
maintain clean, safe, and appropriate housing, maintain contact with DCS,
provide DCS with consents to releases of information, visit with Children, and
submit to diagnostic testing. Mother was also ordered to enroll in, participate
in, and successfully complete home-based counseling services. Father was also
ordered to submit to random drug screens and “abide by the terms of [his]
criminal matter.” Id. at 58. The Children’s continued placement was in foster
care.
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[5] Father participated in supervised visitation with Children between August and
November of 2017. However, Father did not complete the diagnostic
assessment ordered by the court, and he tested positive for marijuana. In the
pending domestic violence charges relating to the May 2017 battery against
Mother in the presence of Children, Father had been released from
incarceration on bond. However, Father’s bond was revoked in November
2017 due to his failure to appear at a hearing, and he was incarcerated once
more. On February 7, 2018, Father pled guilty to the domestic violence charge.
Father was convicted and sentenced to one year and 183 days incarceration,
suspended to probation, and was ordered to complete therapeutic services
through the Center for Nonviolence. Father’s release from incarceration to
probation began on March 18, 2018.
[6] On July 25, 2018, Father’s probation was revoked because he admittedly
violated the terms of his probation by committing Invasion of Privacy through
violation of the no-contact order and Operating a Vehicle with an ACE of .15
or more. On November 20, 2018, Father was sentenced to 183 days
imprisonment for the two new offenses. The criminal court also ordered Father
to serve his original one year, 183-day term of imprisonment. Father was
incarcerated continuously from July 2018 until June 2019.
[7] On February 21, 2019, the trial court held a permanency hearing in the CHINS
matter and found that Mother was not enrolled in therapy, was not cooperating
with home-based services, had not regularly visited Children, and did not have
stable housing. The court also found that Father was still incarcerated. The
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trial court changed Children’s permanency plan to termination of parental
rights with adoption.
[8] On June 12, 2019, DCS filed its petition to terminate parents’ rights as to
Children. The court held fact-finding hearings on October 31 and December 9,
2019. Children’s parents, employees of Lifeline Youth and Family Services
(“LYFS”), the DCS FCMs, and the court-appointed Guardian Ad Litem
(“GAL”) all testified. In an order dated March 4, 2020, the trial court
terminated Mother’s and Father’s parental rights. The court issued the
following relevant findings not yet discussed:
17. The father has a history of criminal behavior including a
conviction for burglary in 2011 and a subsequent
revocation of probation. He was revoked on his probation
related to the domestic battery charge (see above) and, as
of the closure of evidence in this case, is on parole.
18. The father reports employment in Huntington County,
Indiana. Although he asserts that he is residing with his
father, the Department was not able to confirm that
representation with his father. The Respondent father has
acknowledged that he sometimes stays with friends.
19. The father did not have sustainable housing suitable for
the children at the time evidence was closed in this case.
20. The father regularly maintained visits with his children
when he was not incarcerated. The father’s visitations
were supervised by Katherine Devinney of Lifeline Family
Services between December, 2018[,] and May, 2019.
From her testimony the Court finds that she observed the
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children to be anxious during their visits. She expressed
concerns with regard to the father’s means of correcting
the children. The subsequent visitation supervisor, Natalie
Aker, similarly voiced concerns and recommended that
the father complete parenting instruction.
21. From the testimony of Department case worker Irene
Tillman, the Court finds that the father was referred to
parenting classes following his completion of a diagnostic
assessment. But he did not complete the service.
22. From the testimony of Department case worker Irene
Tillman, the Court also finds that the father was referred to
a fatherhood engagement program. Although he started
the service he did not complete it and the referral was
suspended.
23. The father has not signed requested releases of information
so that the Department may communicate with his parole
officer. He has not completed the services through the
Center for Non[v]iolence.
24. The mother has not provided the Department with her
current address[,] advising that the people with whom she
is living do not want the Department’s involvement.
25. The mother reports an income of $2,500.00 per week from
unreported tips she receives working as a dancer for local
nightclub, Brandy’s. She performs under a stage name,
“Trisha.”
26. Notwithstanding her reported income of $2,500.00 per
week, the mother has not secured safe, sustainable housing
appropriate for her children.
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27. The mother has not completed home based services. She
completed a referred medication review but has declined
to take prescribed medication for depression. She has not
completed individual and group dialectical behavior
therapy (DBT) as recommended by her diagnostic
evaluation.
28. Should parental rights be terminated the Department has
an appropriate plan, that being adoption. The children are
placed in a pre-adoptive home.
29. The child’s Guardian ad Litem has concluded that the
children’s best interests are served by the termination of
parental rights. In support of her conclusion she cites the
parent’s failure to complete services and their inability to
secure safe sustainable housing for the children. She has
concluded that the children’s best interests are served by
their adoption by their foster parents.
Appealed Order at 3-4.
[9] The trial court concluded that there was “a reasonable probability that the
reasons that brought about the [Children’s] placement outside the home will not
be remedied[,]” id. at 4, and that termination of Mother’s and Father’s parental
rights was “in the children’s best interests[,]” id. at 5. Therefore, the trial court
terminated the parents’ parental rights. Mother and Father now appeal.
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Discussion and Decision
Standard of Review
[10] Mother and Father maintain that the trial court’s order terminating their
parental rights was clearly erroneous. We begin our review of this issue by
acknowledging 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. See, e.g., In re C.G., 954 N.E.2d 910, 923 (Ind. 2011). However, a
trial court must subordinate the interests of the parents to those of the child
when evaluating the circumstances surrounding a termination. In re K.S., 750
N.E.2d 832, 837 (Ind. Ct. App. 2001). 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. at 836.
[11] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove, among other things:
(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;
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(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) [and] that termination is in the best interests of the child . . . .
Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements
of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.DCS’s “burden of proof in termination of parental rights cases is one of ‘clear
and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009)
(quoting I.C. § 31-37-14-2).
[12] When reviewing a 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 that are most favorable to the judgment. Id.Furthermore, in deference to the trial court’s unique position to assess the
evidence, we will set aside the court’s judgment terminating a parent-child
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relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.
Ct. App. 1999), trans. denied.
[13] Here, in terminating Mother’s and Father’s parental rights, the trial court
entered specific findings of fact and conclusions thereon. When a trial court’s
judgment contains special findings and conclusions, we first determine whether
the evidence supports the findings and, second, we determine whether the
findings support the judgment. Bester v. Lake Cty. Office of Family & Children, 839
N.E.2d 143, 147 (Ind. 2005). “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). If the evidence and inferences
support the trial court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
Challenge to Trial Court’s Factual Findings
[14] Mother does not challenge any of the trial court’s findings of fact; therefore, we
accept those findings as true as to Mother. See, e.g., In re S.S., 120 N.E.3d 605,
610 (Ind. Ct. App. 2019). Father challenges the following findings of fact.3
Challenged Finding Regarding Reasons for Removal
[15] Father challenges the factual statement in Finding number 6 that he “admitted
that [he and Mother] were unable to provide the children with safe sustainable
housing.” Appealed Order at 2. The CHINS petition alleged that Mother, who
3
Father also challenges some of the factual statements contained in Conclusion of Law number 2.
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had custody of Children, was unable to provide Children with stable housing,
and Father was “unable to remove [Children] from a neglectful environment.”
Ex. at 15. It also alleged there was a no-contact order in place between Mother
and Father. The court’s initial CHINS order shows that Father admitted A.H.
was a CHINS and admitted to other relevant CHINS allegations, including the
allegation that he and Children “would benefit from the intervention of the
court in order to receive support and services they would not receive without
the intervention of the court.” Id. at 15, 54. Father points to no evidence
indicating why A.H. would be a CHINS, but K.K. would not; indeed, the
evidence shows Children were living in the same situation.
[16] In addition, Father admitted at the termination hearing that the CHINS action
was initiated because of housing issues and admitted that Mother, who had
custody of Children, was living with Children in a tent in Paternal
Grandfather’s back yard at time they were removed. Father also admitted that
there was a no-contact order in place at the time Children were removed, and
that it prohibited him from having contact with Mother. It is reasonable to
infer from those facts that Children were in an unstable housing situation from
which Father could not remove them.
[17] There was sufficient evidence to support finding number 6.
Challenged Findings Regarding Father’s Lack of Housing
[18] Father challenges factual statements in Findings 18 and 19 and Conclusion 2
that he did not have stable housing at the time of the termination hearing.
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However, that finding is supported by the testimony of FCM Irene Tillman
(“FCM Tillman”), who was the family’s case manager from February 2018 to
the time of the termination hearing. FCM Tillman testified at the termination
hearing that Father never provided her with an address where he consistently
resided. He indicated at some point that he lived with Paternal Grandfather;
however, when FCM Tillman called Paternal Grandfather in October 2019 to
confirm, Paternal Grandfather stated that Father did not live with him. When
confronted with that information, Father told FCM Tillman that he also
sometimes stays with friends. That evidence is sufficient to support the finding
that Father did not have stable housing. Father points to his own conflicting
testimony; however, we may not reweigh the evidence or witness credibility. In
re D.D., 804 N.E.2d at 265.
Challenged Finding Regarding Supervised Visitation
[19] Father notes that Finding 20 erroneously states that his visitations with
Children were supervised by Katherine Devinney (“Devinney”) of Lifeline
Youth and Family Services (“LYFS”), who “observed the children to be
anxious during their visits” and “expressed concerns with regard to the father’s
means of correcting the children.” Appealed Order at 3. As the State
acknowledges, the trial court did err in finding that Devinney supervised
Father’s visits with Children; Father’s visitations were supervised by LYFS
family consultants Megan Rosswurm (“Rossurm”) and Natalie Akers
(“Akers”). However, the error in supervisor names was harmless as the actual
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supervisors of Father’s visits also testified that Father overcorrected Children,
which caused them to be anxious.
[20] Moreover, finding 20—relating to visitation—was not one of the findings that
provided the basis for the trial court’s conclusions and judgment. This Court
has noted that we are to
disregard any special finding that is not proper or competent to
be considered. Riehle v. Moore, 601 N.E.2d 365, 369 (Ind. Ct.
App. 1992). Additionally, such a finding cannot form the basis
of a conclusion of law. Id. We may reverse a trial court’s
judgment, however, only if its findings constitute prejudicial
error. Id. A finding of fact is not prejudicial to a party unless it
directly supports a conclusion. Id.In re B.J., 879 N.E.2d 7, 19-20 (Ind. Ct. App. 2008), trans. denied. As discussed
below, the trial court’s conclusions were based on findings other than Father’s
visitations with Children. Because Finding 20 did not directly support any of
the trial court’s conclusions, any error in that finding was not prejudicial. See
id.Challenged Findings Regarding Father’s Failure to Complete Services
[21] Father admits that he failed to engage in and/or complete required parenting
classes, the Fatherhood Engagement program, and services at the Center for
Nonviolence. But Father challenges factual statements in Findings 21, 22, and
23 and in Conclusion 2 that “suggest Father was to blame” for that failure.
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Father’s Br. at 19. However, there is sufficient evidence that Father was
responsible for the failure to engage in services.
[22] In its September 11, 2017, dispositional order, the CHINS court required that
Father complete a parenting assessment by October 11, 2017, and follow all
recommendations. Father failed to do so even though he was not incarcerated
at the time. Father was also not incarcerated from March 2018 to July 2018 but
again failed to obtain the parenting assessment during that time. Father finally
obtained the parenting assessment in November 2019—although he had been
released from reincarceration since June 2019. However, Father failed to
engage in and complete the parenting classes to which the parenting assessment
referred him. Father contends that that failure was due to the fact that he was
not given the referral to the parenting classes until “three weeks prior to” the
termination hearing, i.e., October 31, 2019. Father’s Br. at 19. However, the
delay in Father being referred to parenting classes was due to his own failure to
timely obtain a parenting assessment that recommended such a referral. And
FCM Tillman testified that she referred Father to Quality Counseling after she
received confirmation that Father finally had obtained the assessment in
November 2019. She testified that the service provider telephoned Father on
three separate occasions at the end of November 2019 but Father never returned
those calls.
[23] FCM Tillman also testified that Father began to engage in the Fatherhood
Engagement program after he was released from incarceration in June 2019,
but he was suspended from the program due to missed appointments. And, as
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a term of his probation, Father was also ordered to complete services through
the Center for Nonviolence. He was released to probation from incarceration—
and therefore able to engage in the domestic violence classes—from March
2018 to July 2018. But Father failed to engage in services at the Center for
Nonviolence at any time.
[24] There is sufficient evidence to support the trial court’s findings that Father
failed to engage in and complete required services when he was able to do so.
Conclusion Regarding Findings
[25] The evidence supports the trial court’s relevant challenged findings. Father’s
contentions boil down to requests that we reweigh the evidence and/or judge
witness credibility, which we will not do. In re D.D., 804 N.E.2d at 265.
Conditions that Resulted in Child’s Removal/Continued
Placement Outside the Home
[26] Both Mother and Father maintain that the trial court erred in finding a
reasonable probability that the conditions that resulted in Child’s removal and
continued placement outside the home will not be remedied. We must
determine whether the evidence most favorable to the judgment supports the
trial court’s conclusion. In re D.D., 804 N.E.2d at 265; Quillen, 671 N.E.2d at
102. In doing so, we engage in 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 determine whether there is a reasonable probability that those
conditions will not be remedied.” Id. (quotations and citations omitted).
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[27] In the first step, we consider not only the initial reasons for removal, but also
the reasons for continued placement outside the home. In re N.Q., 996 N.E.2d
385, 392 (Ind. Ct. App. 2013). In the second step, the trial court must judge a
parent’s fitness to care for his or her children at the time of the termination
hearing, taking into consideration evidence of changed conditions. In re E.M., 4
N.E.3d at 643. However, the court must also “evaluate the parent’s habitual
patterns of conduct to determine the probability of future neglect or deprivation
of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind.
Ct. App. 2008) (quotations and citations omitted); see also In re M.S., 898 N.E.2d
307, 311 (Ind. Ct. App. 2008) (noting the “trial court need not wait until a child
is irreversibly harmed such that his physical, mental, and social development
are permanently impaired before terminating the parent-child relationship”). In
evaluating the parent’s habitual patterns of conduct, the court may disregard
efforts made shortly before the termination hearing and weigh the history of the
parent’s prior conduct more heavily. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind.
2013). And DCS is not required to rule out all possibilities of change; rather, it
need establish only that there is a reasonable probability the parent’s behavior
will not change. Moore, 894 N.E.2d at 226.
[28] Here, Children were removed because the parents could not provide them with
a safe, stable living environment. Specifically, among other things, the family
had been evicted from a home that had no electricity or running water and had
then moved in with family members who later “kicked them out of the home,”
Tr. V. I at 56; Father had engaged in a “domestic altercation” with Mother in
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the presence of Children, Ex. at 14, 15; and Father was “unable to remove
[Children] from a neglectful environment,” id. at 15.
[29] Mother asserts that she has remedied the reason for Children’s removal because
she testified that she was living with a friend, that Children could live with her
at her friend’s residence, and that she had a bedroom and beds for Children.
However, the trial court conclusion to the contrary is supported by evidence
that Mother refused to give DCS her address, thereby prohibiting them from
inspecting and verifying her allegedly safe and appropriate home for Children.
And even Mother’s own testimony does not establish that Mother has a lease or
any other legal right to stay at her friend’s residence. In addition, the evidence
establishes that Mother has failed to engage in the home-based services to
which she was referred. That evidence is sufficient to support the trial court’s
finding that Mother “has not secured safe, sustainable housing appropriate for
her children.” And that finding supports the trial court’s conclusion that there
is a reasonable probability that Mother has not remedied, and will not remedy,
the reasons for Children’s removal. Mother’s contentions to the contrary are
simply requests that we reweigh the evidence, which we may not do.
[30] Father admits that Children were originally removed due to a “lack of stable
housing” and were not returned to him because of his “incarceration, alleged
lack of stable housing, and failure to complete services.” Father’s Br. at 22.
However, Father maintains that he had “cured all of those issues to the extent
possible” by the time of the termination hearing. Id.
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[31] Father’s claims do not account for the evidence—discussed above in relation to
the challenged findings—that he did not have stable housing at the time of the
termination hearing, was repeatedly incarcerated during large portions of the
pending CHINS and TPR cases, and failed to engage in services meant to
improve his ability to parent and refrain from domestic violence. Rather,
Father’s assertions are merely requests that we reweigh the evidence. Again,
we may not do so. E.g., In re D.D., 804 N.E.2d at 265. The trial court did not
clearly err in concluding that Father has not remedied—and is not likely to
remedy—the conditions that led to Children’s removal and continued
placement outside the home.
Best Interests
[32] 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 A.K.,
924 N.E.2d 212, 224 (Ind. Ct. App. 2010). “A parent’s historical inability to
provide adequate housing, stability and supervision coupled with a current
inability to provide the same will support a finding that termination of the
parent-child relationship is in the child’s best interests.” Castro v. State Office of
Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.
“Additionally, a child’s need for permanency is an important consideration in
determining the best interests of a child, and the testimony of the service
providers may support a finding that termination is in the child’s best interests.”
In re A.K., 924 N.E.2d at 224. Such evidence, “in addition to evidence that the
conditions resulting in removal will not be remedied, is sufficient to show by
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clear and convincing evidence that termination is in the child’s best interests.”
In re A.D.S., 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.
[33] Again, parents’ contentions on this issue amount to requests that we reweigh
the evidence, which we will not do. The evidence most favorable to the
judgment shows that “neither parent ha[d] secured housing appropriate for the
placement of the Children.” Appealed Order at 5. The evidence also showed
that neither parent had complied with services required to improve their
abilities to parent. Furthermore, the evidence established that Children were in
a pre-adoptive home that provided them with consistency of care. And both
FCM Tillman and GAL Jennifer Young (“GAL Young”) testified that they
believed termination of parental rights was in Children’s best interests,
especially given Children’s need for stability and parents’ continuous and on-
going inability to provide the same. GAL Young also testified that termination
was in Children’s best interests because parents have been seen together despite
the on-going no-contact order, and Father has failed to engage in services
related to domestic violence. Given that testimony, in addition to evidence that
Children need permanency and stability that neither parent can provide and the
reasons for Children’s removal will not likely be remedied, the totality of the
evidence supports the trial court’s conclusion that termination is in Children’s
best interests. In re A.D.S., 987 N.E.2d at 1158-59.
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Conclusion
[34] The evidence in the record supports the trial court’s relevant findings of fact,
and those findings support the trial court’s conclusion that Mother’s and
Father’s parental rights should be terminated. The trial court did not commit
clear error by so ruling.
[35] Affirmed.
Vaidik, J., and Baker, Sr. J., concur.
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