In the Termination of the Parent-Child Relationship of: K.S. (Minor Child) and D.S. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                       FILED
    this Memorandum Decision shall not be                                   Dec 29 2017, 10:27 am
    regarded as precedent or cited before any                                    CLERK
    court except for the purpose of establishing                             Indiana Supreme Court
    Court of Appeals
    the defense of res judicata, collateral                                       and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Anna Onaitis Holden                                      Curtis T. Hill, Jr.
    Indianapolis, Indiana                                    Attorney General of Indiana
    Katherine A. Cornelius
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Termination of the Parent-                        December 29, 2017
    Child Relationship of:                                   Court of Appeals Case No.
    49A02-1707-JT-1499
    K.S. (Minor Child),
    Appeal from the Marion Superior
    and                                                      Court
    D.S. (Father),                                           The Honorable Marilyn A.
    Appellant-Respondent,                                    Moores, Judge
    The Honorable Larry E. Bradley,
    v.                                               Magistrate
    Trial Court Cause No.
    The Indiana Department of                                49D09-1612-JT-1199
    Child Services,
    Appellee-Petitioner
    Baker, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017         Page 1 of 22
    [1]   D.S. (Father) appeals the juvenile court’s order terminating his parent-child
    relationship with his daughter, K.S. Father argues that there is insufficient
    evidence supporting the juvenile court’s conclusion that the conditions that
    resulted in K.S.’s placement outside Father’s home would not be remedied, that
    the continuation of the parent-child relationship poses a threat to K.S.’s well-
    being, or that the termination of the parent-child relationship is in K.S.’s best
    interest. Finding the evidence sufficient, we affirm.
    Facts
    [2]   K.S. was born on November 11, 2012, to Father and C.B. (Mother).1 Father
    and Mother were not married, and Mother was the custodial parent. Prior to
    2012, Father had a substance abuse problem; sometime during 2012, he was
    incarcerated for six months for attempted theft. After his release, he did not
    visit K.S., per Mother’s request.
    [3]   On March 4, 2015, the Department of Child Services (DCS) filed a petition
    alleging that K.S. was a child in need of services (CHINS) after Mother gave
    birth to a drug-positive baby.2 DCS removed K.S. from Mother’s care and
    placed her with a relative. She was not placed with Father because he had
    recently tested positive for methamphetamine and marijuana. At the time,
    1
    Mother is not a party to this appeal.
    2
    Father and the second child are not related.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 2 of 22
    Father had little to no relationship with K.S. The trial court ordered that Father
    have supervised parenting time with K.S.
    [4]   On March 25, 2015, Father admitted that K.S. was a CHINS because he
    needed to learn how to provide K.S. with a home environment free of substance
    abuse issues. The trial court found a sufficient factual basis to find K.S. to be a
    CHINS. A dispositional hearing took place the same day, during which the
    trial court ordered Father to participate in home based therapy and home based
    case management, complete a substance abuse assessment, submit to random
    drug screens, and follow all recommendations of service providers. On May 1,
    2015, K.S. was placed in foster care.
    [5]   A review hearing took place on June 17, 2015. DCS reported that Father had
    completed one drug screen, which was clean, was not engaged in services, and
    was participating in parenting time. K.S.’s foster mother said that K.S.
    exhibited negative behaviors after Father’s visits. Father stated that he missed
    his substance abuse assessment because of his work schedule; that he has stable
    housing and employment and that home based case management may not be
    necessary for him; and that he was willing to engage in home based therapy.
    Father requested unsupervised parenting time so that he could work toward a
    temporary trial visit for K.S. The trial court ordered that Father could have
    unsupervised parenting time upon completion of five consecutive clean drug
    screens.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 3 of 22
    [6]   In July 2015, K.S. began home based therapy with licensed mental health
    counselor Kate Rojek. K.S. exhibited symptoms of anger, acting out, erratic
    moods, oppositional behaviors, and hyperactivity. Rojek observed that K.S.
    had symptoms of adjustment disorder, meaning that she had observable,
    reactive, disproportionate symptoms to an identifiable stressor, and symptoms
    of post-traumatic stress disorder. Rojek also observed supervised visits between
    Father and K.S. During the initial visits, K.S. would become mute, anxious,
    and guarded, and would sit cross-legged on the floor with wide eyes and
    clenched fists. In contrast, when K.S. was with her foster family, she appeared
    happy and spoke frequently. In September 2015, Father and K.S. started
    supervised therapeutic visits; over time, K.S. demonstrated fewer physical
    symptoms of anxiety and began to appear more comfortable around Father.
    [7]   At some point, B.B., who was Father’s live-in girlfriend and who had custody
    of five children age five and under, wanted to be included in the therapeutic
    visitation sessions, along with her children, because she and Father wanted K.S.
    to live with them. Rojek did not think that B.B.’s participation was
    therapeutically appropriate for K.S., but allowed it because the plan and goal at
    that time was reunification of the family. When B.B. and her children attended
    the visits, K.S. would become mute, withdrawn, and more anxious. When
    Rojek spoke with Father alone about K.S.’s selective mutism and symptoms of
    post-traumatic stress disorder, Father was receptive to Rojek’s explanations and
    plans for intervention that he could implement as the parent caregiver;
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 4 of 22
    however, when B.B. joined the discussions, Father would agree with what B.B.
    wanted regarding therapeutic visitation.
    [8]   Another review hearing took place on September 16, 2015. DCS reported that
    Father was engaged in services and had produced clean drug screens. Rojek
    stated that K.S. was exhibiting symptoms of post-traumatic stress disorder,
    including during visits. K.S.’s foster mother also stated that K.S. was exhibiting
    symptoms, including yelling and night terrors, and that the behaviors escalated
    following visits. Rojek recommended continued therapeutic visits. Father
    expressed concern about the delay in starting unsupervised parenting time and
    stated that he was willing to continue K.S.’s therapy once she was placed in his
    care. The trial court ordered Father to participate in K.S.’s therapy and that
    unsupervised parenting time would not begin until Rojek made a positive
    recommendation.
    [9]   A permanency hearing took place on February 24, 2016. DCS reported that
    Father was not engaging in services, that Father and B.B. had been evicted from
    their home and were living in temporary housing, and that Father was
    participating in parenting time twice per week. DCS expressed continuing
    concern about K.S.’s behaviors following visits. Further, DCS reported that on
    February 4, 2016, a report was made that B.B. was abusing her own children.
    DCS recommended that B.B. also engage in services if she were to participate
    in visits with K.S. Rojek reported that K.S. had made progress; she could now
    manage her own symptoms, and Father and K.S. had developed a bond.
    However, K.S. was still acting out after visits. Rojek wanted Father to
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 5 of 22
    complete a substance abuse assessment. Both Rojek and K.S.’s guardian ad
    litem expressed desire for Father to obtain stable housing. Father stated that he
    was unaware of the need to complete the substance abuse assessment because
    he had provided negative screens and was no longer asked to screen. The trial
    court authorized DCS to screen Father if it was deemed necessary and removed
    the requirement that he complete a substance abuse assessment.
    [10]   On June 22, 2016, DCS placed K.S. with Father and B.B. on a temporary trial
    visit.3 Rojek supported the trial visit because K.S. had made good progress and,
    with the goal of reunification with Father, the plan was to continue to address
    issues while K.S. lived with Father. Rojek had concerns about B.B.’s mental
    health and her ability to care for so many children, but she did not think there
    was an imminent safety concern regarding K.S.’s placement.
    [11]   At first, K.S. appeared to be transitioning well, speaking frequently and not
    showing signs of anxiety. However, problems arose. In July 2016, the house
    became unclean, with trash and piles of clothes on the floor that made it hard to
    walk through rooms. B.B. said that she was overwhelmed caring for so many
    children because Father was working so many hours. In August 2016, the
    condition of the house worsened; there were problems with clothes, food, flies,
    and trash on the floor. The children had lice, which B.B. denied to the service
    providers. At some point, Father and B.B. presented a plan to address the
    3
    The record is unclear about Father’s housing at this point in time.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 6 of 22
    issue, saying that they were going to move, but Family Case Manager Caitlin
    Cincebox found out that they were actually being evicted. Also during K.S.’s
    visit, Father and B.B. allowed other people to stay with them without DCS
    approval. One of these people was B.B.’s uncle, for whom there was an active
    arrest warrant; another was Father’s brother, who had recently been released
    from prison and was on house arrest. On October 1, 2016, Father’s brother
    overdosed on heroin at home. On that day, Father had “tried to stay up as late
    as I could with him ’cause he was having a bad day and he does have
    problems.” Tr. Vol. II p. 11.
    [12]   Father admitted to using methamphetamine on the day his brother overdosed
    so he could “escape reality.” 
    Id. at 7.
    On October 4, 2016, DCS removed K.S.
    from Father’s home. Father had two visits with K.S. after her removal, the last
    one of which was on October 26, 2016. He missed a visit scheduled for
    November 4, 2016, after which K.S. became agitated and anxious. Meanwhile,
    on October 19, 2016, the trial court changed the permanency plan to adoption.
    [13]   After the change in the plan, Rojek recommended that the therapeutic
    visitations between Father and K.S. continue but decrease significantly in
    frequency in part because K.S. was demonstrating reactive attachment
    symptoms, meaning that she was exhibiting socially and emotionally
    withdrawn behavior toward caregivers, and in part because of the changed
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 7 of 22
    plan.4 Following her removal, K.S. indicated that she did not want to return to
    Father’s home. K.S.’s foster mother observed that, upon K.S.’s return to her
    foster home, K.S. had more consistent nightmares and trouble remembering
    things and was fearful about having to return to Father’s house. Rojek
    observed a “dramatic increase” in obsessive traumatic play, which is when a
    child demonstrates an obsessive need to role play traumatic experiences, that
    focused on K.S.’s experiences while in Father’s care. 
    Id. at 140.
    The play
    included:
    •   K.S. instructing Rojek to “stand on the wall” and be yelled at.
    •   K.S. locking herself in her bedroom and not allowing Rojek to enter.
    •   K.S. stating that B.B.’s children would “be in trouble.”
    •   K.S. pushing Rojek when it was time to get in the car, as if to push her
    into a car seat.
    
    Id. at 173.
    Rojek identified B.B., men, and strangers as some of K.S.’s triggers.
    [14]   In October 2016, Father was referred to an individual counselor, Teresa
    Troxell, to work on establishing stability in his life by creating appropriate
    boundaries and healthy relationships and to address his substance abuse.
    Troxell observed that Father made progress because in November or December
    2016, he had ended his relationship with B.B., who had caused chaos in his life.
    But Troxell also noted that, immediately following the break-up, Father had
    moved in with family members, including his mother, who had caused chaos
    4
    The record is unclear as to why Father’s visits stopped altogether after he missed the November 4, 2016,
    visit.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017        Page 8 of 22
    for him in the past. Troxell observed two visits between Father and K.S. that
    went well. Father met with Troxell for between ten and fifteen sessions before
    stopping the services in December 2016 because he thought he did not need
    therapy, missed a session, and ignored Troxell’s attempts to reach him.
    [15]   On October 25, 2016, Father completed a substance abuse assessment with
    William Taylor. Taylor identified four substances as being a problem for
    Father: benzodiapines, which Father stated he thought he was addicted to;
    marijuana; methamphetamine; and prescription opiates. Taylor found the
    following diagnostic impressions for Father: severe cannabis use disorder,
    possible sedative hypnotic use disorder, possible opioid use disorder, and
    stimulant use disorder.
    [16]   On December 2, 2016, DCS filed a petition for the termination of the parent-
    child relationship. On February 1, 2017, Father tested positive for
    amphetamines and methamphetamine. A hearing took place on June 1, 2017.
    Father testified that he thought K.S. was shy and did not talk, that he did not
    see that K.S. had triggers until around the time his brother overdosed, and that
    B.B. “was like a trigger for some reason, I don’t know why. But it just made
    her shut down, made [K.S.] shut down and didn’t want to talk or anything.”
    
    Id. at 244.
    Father testified that he had a job, where he had worked for about a
    year, and was renting a one-bedroom apartment with his new girlfriend. K.S.’s
    foster mother testified that K.S. has a developmental delay and attends a
    developmental preschool.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 9 of 22
    [17]   On June 13, 2017, the juvenile court granted the petition, finding, in relevant
    part, as follows:
    8. [Father] participated in services and [K.S.]’s court hearings to
    the point that [K.S.] was placed in temporary in-home trial
    visitation with her father in June of 2016.
    9. Although there were concerns with the poor and dirty
    conditions of the house, and outside persons residing in the
    home, [K.S.] remained with [Father] until early October of 2016,
    at which time she was detained outside the home after [Father]
    tested positive for methamphetamine and his brother overdosed
    in the home.
    10. [Father] was referred for a substance abuse assessment which
    was conducted on October 25, 2016 with William Taylor.
    11. Mr. Taylor reported his diagnostic impression of [Father] as
    Cannabis Use Disorder (severe), Sedative Hypnotic Use Disorder
    (Possible), Opioid Use Disorder (Possible), and Stimulant Use
    Disorder (Methamphetamine).
    12. Follow-up drug treatment was recommended but no referral
    was made.
    13. [Father] does not believe he has a drug issue at present but
    did in October of 2016.
    14. Although there was an open drug screen referral, [Father]
    has taken one drug test during 2017, which was positive for
    amphetamine and methamphetamine.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 10 of 22
    15. [Father] has full-time employment and resides in a one-
    bedroom apartment with his girlfriend.
    16. Home based therapy to address [Father]’s need to
    understand and create boundaries to establish stable and healthy
    relationships was not completed. [Father] did not feel therapy
    was necessary.
    17. The home based therapist did not recommend placement of
    a child with [Father] without addressing how his boundary issues
    could negatively impact a child.
    18. [Father]’s parenting time was consistent prior to [K.S.] being
    placed with him.
    19. [Father] did not have a relationship with his daughter prior
    to the CHINS case. He developed a bond with [K.S.] but his last
    visit with [K.S.] was on October 26, 2016.
    ***
    26. [K.S.] has special needs and has been involved in therapy
    with Kate Rojek since July of 2015. She presents with symptoms
    of reactive attachment disorder and post-traumatic stress
    disorder.
    27. [K.S.] is developmentally delayed, has had a neurological
    evaluation and will be in need of a psychological evaluation.
    28. Therapist Rojek observed [Father] making choices not in
    [K.S.]’s best interests.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 11 of 22
    29. Therapist Rojek does not believe visits between [K.S.] and
    her parents would be in [K.S.]’s best interests and to return [K.S.]
    to her father would be harmful and could negatively affect [K.S.]
    long term.
    30. [K.S.] does not mention her father to the therapist.
    31. With the exception of the approximate four-month in-home
    placement with her father, [K.S.] has resided in the same foster
    home since May of 2015, almost two years.
    32. [K.S.] has been observed as being happy and adjusted, and as
    being bonded to her foster parents. She identifies her caregivers
    as her permanency plan.
    ***
    38. There is a reasonable probability that the conditions that
    resulted in [K.S.]’s removal and continued placement outside the
    home will not be remedied by her father who has not addressed
    his substance abuse and does not believe he has a drug problem.
    ***
    40. Continuation of the parent-child relationship poses a threat
    to [K.S.]’s well-being in that it would pose as a barrier to
    obtaining permanency for [her] through an adoption where all
    [her] needs will continue to be met. . . .
    41. The children’s Guardian ad Litem believes it to be in [K.S.]’s
    best interests that [she] be adopted . . . .
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 12 of 22
    42. Termination of the parent-child relationship is in the best
    interests of [K.S.] Termination would allow [her] to be adopted
    into a stable and permanent home where [her] needs will be
    safely met.
    43. There exists a satisfactory plan for the future care and
    treatment of [K.S.], that being adoption.
    Appellant’s App. Vol. II p. 16-18. Father now appeals.
    Discussion and Decision
    [18]   Father argues that the evidence does not establish that (1) there is a reasonable
    probability that the conditions that resulted in K.S.’s removal will not be
    remedied; (2) the continuation of the parent-child relationship poses a threat to
    K.S.’s well-being; or that (3) termination is in K.S.’s best interest.
    I. Standard of Review
    [19]   Our standard of review with respect to termination of parental rights
    proceedings is well established. In considering whether termination was
    appropriate, we neither reweigh the evidence nor assess witness credibility.
    K.T.K. v. Ind. Dep’t of Child Servs., 
    989 N.E.2d 1225
    , 1229 (Ind. 2013). We will
    consider only the evidence and reasonable inferences that may be drawn
    therefrom in support of the judgment, giving due regard to the trial court’s
    opportunity to judge witness credibility firsthand. 
    Id. Where, as
    here, the trial
    court entered findings of fact and conclusions of law, we will not set aside the
    findings or judgment unless clearly erroneous. 
    Id. In making
    that
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 13 of 22
    determination, we must consider whether the evidence clearly and convincingly
    supports the findings, and the findings clearly and convincingly support the
    judgment. 
    Id. at 1229-30.
    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.” Bester v. Lake Cty. Office of Family & Children,
    
    839 N.E.2d 143
    , 148 (Ind. 2005).
    [20]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate
    parental rights for a CHINS must make the following allegations:
    (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:
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 14 of 22
    (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.
    DCS must prove the alleged circumstances by clear and convincing evidence.
    
    K.T.K., 989 N.E.2d at 1230
    .
    II. Remedy of Conditions
    [21]   As noted above, one of the ways to support a termination petition is for DCS to
    prove by clear and convincing evidence that the conditions that resulted in the
    child’s removal or the reasons for placement outside the home of the parent will
    not be remedied.
    [22]   After K.S.’s removal from Mother on March 4, 2015, she was not placed with
    Father because he had tested positive for methamphetamine and marijuana.
    K.S. was first placed in Father’s home on June 22, 2016, for a temporary trial
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 15 of 22
    home visit. During her approximately three and one-half month stay with
    Father, Father abused substances; the condition of the house deteriorated to an
    unsanitary level; and Father and B.B. allowed other people to reside in the
    house with K.S., including Father’s brother, who overdosed on heroin in the
    home.
    [23]   Although Father had several negative drug screens throughout the course of the
    CHINS proceeding, following his brother’s overdose, he admitted to using
    drugs on the day of his brother’s overdose and tested positive for drugs, thus
    establishing that he used drugs while K.S. lived with him. As for the condition
    of the house, it actually worsened during K.S.’s stay. Family Case Manager
    Cincebox testified that “the home had progressively been deteriorating in its
    condition,” with visible mold growing in the living room, trash piled up in the
    kitchen, and raw sewage overflowing from a toilet. Tr. Vol. II p. 38. Father’s
    substance abuse and the condition of the house indicate that, rather than
    making progress in his ability to provide K.S. with a safe and stable home, he
    was backsliding by continuing to make inappropriate and harmful choices.
    [24]   Moreover, Father’s therapist expressed concern about Father’s ability to set
    boundaries for himself that would help him provide a safe and stable living
    environment for K.S. This concern is supported by the fact that, during K.S.’s
    temporary trial visit, Father and B.B. allowed B.B.’s uncle and Father’s brother
    to live in the same house as K.S., despite the fact that two of K.S.’s triggers are
    men and strangers. There was an active arrest warrant for B.B.’s uncle, and
    Father’s brother overdosed in the home. Although the therapist noted that
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 16 of 22
    Father made progress in establishing boundaries by ending his relationship with
    B.B., after he did so, he moved in with his mother and other family members;
    his mother had also caused problems in his life. Further, Father started another
    dating relationship almost immediately after ending his relationship with B.B.
    In short, Father’s actions show that he cannot or will not maintain a stable life
    for himself or establish a safe and stable home for K.S. Accordingly, the trial
    court did not err by finding that the conditions that resulted in K.S.’s removal
    from Father’s home would not be remedied.
    III. Threat to K.S.’s Well-Being
    [25]   Because the requirements of the governing statute are disjunctive, and because
    we have already found that DCS proved that the conditions that resulted in
    K.S.’s removal from Father’s home would not be remedied, we need not also
    address whether the parent-child relationship poses a threat to K.S.’s well-
    being. Nonetheless, we will address the issue given the seriousness of what is at
    stake in a termination case.
    [26]   It is well established that a trial court need not wait until a child’s physical,
    mental, and social growth are permanently impaired before terminating the
    parent-child relationship. In re E.S., 
    762 N.E.2d 1287
    , 1290 (Ind. Ct. App.
    2002). Therefore, termination is appropriate “[w]hen the evidence shows that
    the emotional and physical development of a [CHINS] is threatened . . . .” 
    Id. In evaluating
    whether the continuation of the parent-child relationship poses a
    threat to the child, a trial court “should consider a parent’s habitual pattern of
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 17 of 22
    conduct to determine whether there is a substantial probability of future neglect
    or deprivation” while also judging a parent’s fitness to care for his child as of
    the time of the termination proceedings, taking into consideration evidence of
    changed conditions. In re A.P., 
    981 N.E.2d 75
    , 81 (Ind. Ct. App. 2012).
    [27]   We agree with Father’s contention that the juvenile court’s order focused too
    much on permanency with regard to K.S.’s well-being. As Father aptly stated,
    the juvenile court’s reference to the parent-child relationship as a “barrier” to
    permanency shows “its improper focus on the hope of a ‘better’ home for K.S.,
    if only Father’s parental rights could be terminated.” Appellant’s Br. p. 20.
    And as our Supreme Court has stated, “termination should not result solely
    because there is a better home available for the children.” K.E. v. Indiana Dep’t
    of Child Servs., 
    39 N.E.3d 641
    , 649 (Ind. 2015) (quotation marks and citation
    omitted).
    [28]   A better order would make more specific findings of fact and conclusions of law
    regarding whether the parent-child relationship poses a threat to K.S.’s well-
    being. But what Father’s argument regarding the order overlooks is that the
    juvenile court did not base termination solely on the fact that a safe, stable, and
    permanent home existed for K.S. through adoption. In its order, the juvenile
    court noted that Father abused drugs, that his brother overdosed in the home
    while K.S. lived there, that Father refused to admit that he had a drug problem,
    that Father did not think therapy was necessary, that Father made choices that
    were not in K.S.’s best interests, and that returning K.S. to Father could
    negatively affect K.S. in the long-term. In other words, the juvenile court found
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 18 of 22
    that Father had an ongoing, untreated drug problem, did not prioritize K.S.’s
    needs, and did not think that he needed help to develop as a caregiver who
    would appropriately look after K.S.
    [29]   As Father states, he had some success with services, visits, and establishing a
    relationship with K.S., and we commend him for the efforts that he made. But
    throughout this case, Father was only sporadically receptive to addressing
    K.S.’s needs. When Rojek spoke with Father about being a parent caregiver,
    Father was responsive when he was alone, but he was not responsive when B.B.
    was also part of the conversation. In addition, Father’s work with his therapist
    ended after he canceled and missed some sessions, proceeding to ignore the
    therapist’s efforts to get in touch with him. Father also seems unwilling to
    acknowledge K.S.’s special needs. At the termination hearing, he testified that
    he thought K.S. was merely shy and quiet, that he did not see that K.S. had
    triggers until around the time his brother overdosed, and that although he can
    recognize when K.S.’s moods or behavior changes, he cannot recognize what
    causes those changes. Father also stated that B.B. “was like a trigger for some
    reason, I don’t know why. But it just made her shut down, made [K.S.] shut
    down and didn’t want to talk or anything.” Tr. Vol. II p. 244.
    [30]   K.S. is a child who needs help. Her foster mother testified that K.S. has a
    developmental delay and attends a developmental preschool. K.S. suffers from
    consistent nightmares, has trouble remembering things, and, after her removal
    from Father’s house, was scared to return. K.S. exhibited troubling play in
    therapy, role playing various situations involving punishment of children and
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 19 of 22
    some physical aggression. Father has not visited K.S. since October 26, 2016,
    approximately seven months before the termination hearing. Overall, despite
    Father’s best intentions and any progress he may have made in his relationship
    with K.S., he was often either unwilling or unable to work toward developing
    as a parent caregiver who could recognize, prioritize, and appropriately care for
    K.S. The trial court did not err by finding that continuation of the parent-child
    relationship poses a threat to K.S.
    IV. Best Interests
    [31]   Finally, Father argues that the trial court erred by finding that DCS proved by
    clear and convincing evidence that termination is in the best interests of K.S.
    He challenges the trial court’s conclusion that “Termination of the parent-child
    relationship is in the best interests of [K.S.] Termination would allow [her] to
    be adopted into a stable and permanent home where [her] needs will be safely
    met.” Appellant’s App. Vol. II p. 18. Father relies on the fact that “the right of
    parents to raise their children should not be terminated solely because there is a
    better home available for the children.” A.A. v. Ind. Dep’t of Child Servs., 
    51 N.E.3d 1140
    , 1151 (Ind. 2016) (citation omitted).
    [32]   According to Father, he has demonstrated his ability to bond with K.S. and
    take positive steps toward reunification. Despite having little to no relationship
    with K.S. at the outset of this case, Father participated in visits to develop a
    bond between them. And though K.S. was mute during their initial visits
    together, over time, she opened up to Father. And Father was consistent with
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 20 of 22
    his parenting time and participation in K.S.’s court hearings and made enough
    progress with K.S. to warrant a temporary trial visit.
    [33]   Again, we acknowledge Father’s efforts, but we must also acknowledge the bad
    choices he made along the way. Prior to K.S.’s placement with Father, Father
    prioritized B.B.’s needs over his own child’s, allowing B.B. and her children to
    participate in his visits with K.S. against the advice of K.S.’s therapist. Father
    seemed unaware of B.B.’s harmful impact on K.S. or how or why B.B. would
    have such an impact on a child. Once K.S. was placed with Father, Father
    allowed their living condition to deteriorate such that mold was growing in the
    living room, trash was piled up in the kitchen, and raw sewage was overflowing
    from a toilet. And during K.S.’s stay, Father allowed his brother to live in his
    home, even though his brother was recently released from prison and on house
    arrest. After his brother overdosed in the home while K.S. was there, Father
    tried to cope with the situation by using drugs himself so that he could “escape
    reality.” Tr. Vol. II p. 7. Despite these serious shortcomings, Father did not
    think that he had a substance abuse problem to address, let alone that he needed
    to take action to address it. Further, he gave up on his individual counseling
    after only two months, apparently because he thought he did not need therapy.
    Because he discontinued these sessions, Father was unable to show whether he
    had learned how to establish stability in his life by creating appropriate
    boundaries and healthy relationships.
    [34]   In short, Father did not show good judgment or prioritize his relationship with
    his own child over other relationships in his life. Given this record, we find that
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 21 of 22
    the trial court did not err by concluding that DCS proved by clear and
    convincing evidence that termination is in the child’s best interests.
    [35]   The judgment of the trial court is affirmed.
    Riley, J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1499 | December 29, 2017   Page 22 of 22
    

Document Info

Docket Number: 49A02-1707-JT-1499

Filed Date: 12/29/2017

Precedential Status: Precedential

Modified Date: 4/17/2021