In the Matter of the Termination of the Parent-Child Relationship of G.E.G., Jr. (Minor Child), G.E.G. (Father) and K.A.G. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 30 2018, 9:34 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
FATHER Curtis T. Hill, Jr.
Carlos I. Carrillo Attorney General of Indiana
Greenwood, Indiana
David E. Corey
ATTORNEY FOR APPELLANT- Deputy Attorney General
MOTHER Indianapolis, Indiana
Luisa M. White
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 30, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of G.E.G., Jr. (Minor Child), 79A02-1708-JT-1972
G.E.G. (Father) and K.A.G. Appeal from the Tippecanoe
(Mother), Superior Court
The Honorable Tricia L.
Appellants-Respondents,
Thompson, Juvenile Magistrate
v. The Honorable Faith A. Graham,
Judge
Indiana Department of Child Trial Court Cause No.
Services, 79D03-1610-JT-102
Appellee-Petitioner.
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Najam, Judge.
Statement of the Case
[1] G.E.G. (“Father”) and K.A.G. (“Mother”) appeal the trial court’s termination
of their parental rights over their minor son G.E.G., Jr. (“Child”). Father raises
four issues for our review, and Mother raises three issues. We consolidate the
parties’ arguments into the following four issues on appeal:
1. Whether the trial court abused its discretion when it
admitted certain evidence against Father.
2. Whether the trial court’s conclusion that the conditions
that resulted in Child’s removal from Mother will not be
remedied is clearly erroneous.
3. Whether the trial court’s conclusion that the continuation
of Father’s relationship with Child poses a threat to
Child’s well-being is clearly erroneous.
4. Whether the trial court erred when it concluded that the
termination of the parent-child relationships is in
Child’s best interests.
[2] We affirm.
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Facts and Procedural History1
[3] In 2014, the Indiana Department of Child Services (“DCS”) petitioned the trial
court to have Child, who was born in February of 2006, adjudicated a Child in
Need of Services (“CHINS”) on the basis of Mother’s drug use and Child’s
absences from school. Child lived with both Mother and Father. The trial
court granted DCS’s petition, ordered Child to attend school, and ordered
Mother and Father to refrain from drugs and alcohol and to submit to drug
screens and all other services and recommendations. The court continued
Child’s placement with Mother and Father.
[4] About one month later, in February of 2015, Mother tested positive for
methamphetamine. Accordingly, the trial court ordered Mother “to be
removed from the home” and for Child to remain at the home with Father. Ex.
Vol. 1 at 24.2 At that time, Father agreed that the removal of Mother from
Child’s home was in Child’s best interests.
[5] In January of 2016, DCS removed Child from Father’s care. The next day, the
trial court found the following facts and approved of DCS’s removal of Child:
[Child] was residing in the home with his Father on the condition
that Mother vacate the residence and have absolutely no
unsupervised contact with [Child] due to Mother’s ongoing
substance use and refusal to participate in services. DCS reports
1
Neither Father’s nor Mother’s Statements of Facts in their respective briefs on appeal are in accordance
with our standard of review, which is contrary to Indiana Appellate Rule 46(A)(6)(b).
2
Our page references to the exhibits are to the .pdf paginations of the respective volumes.
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that a report was received that officers from the Tippecanoe
County Community Corrections and Tippecanoe County Drug
Task Force were in the Father’s home on January 3, 2016.
Father consented to a search of the home and officers located
two purses in the Father’s bedroom. In one purse, officers
located Mother’s identification along with a clear glass smoking
device identified by law enforcement as a methamphetamine pipe
and a small plastic baggy with a white powdery substance that
resembled methamphetamine. A second smoking device was
located in the living room that had residue of burnt marijuana or
spice. [Child’s] adult sister was living in the family home and
had been serving her house arrest sentence there. Mother was
also at the residence while [Child] was there despite the
restriction. The adult sister was arrested and the Mother was
allowed to leave the residence.
Id. at 51. The court then ordered Child to be placed in foster care.
[6] While in foster care, Child’s attendance, academic performance, and behavior
at school improved. The semester prior to his placement in foster care, Child
had 23 absences and 12 tardies; his grades were mostly Cs and Ds; he “was
really tired,” “often had his head down,” and “did not want to work in the
classroom”; and he had thirteen reports of “severe” behavioral issues. Tr. Vol.
2 at 23-26. However, immediately following his placement in foster care, Child
“was at school every day, on time”; his grades improved to mostly As and Bs;
he was “ready to work”; and he had a “substantial decline” in behavioral
issues. Id. at 24, 27.
[7] During the CHINS proceedings, DCS recommended that Child participate in
therapy. While in the care of Father or Mother, Child would not participate in
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that therapy. However, upon his placement in foster care, Child participated in
weekly therapy sessions with Kathleen Carmosin at Wabash Valley Alliance.
Child was initially diagnosed3 with oppositional defiance disorder stemming
from his home environment and “inconsistent parenting.” Id. at 78.
[8] During his therapy sessions, Child expressed “a lot of anxiety” with respect to
Mother and Father, which resulted in “behavior issues in the school setting”
and “with caregiver[s].” Id. at 76. With respect to Mother, Child was “fearful
that she . . . is homeless . . . , that she’s still using drugs, that she might be
literally sitting on a street corner somewhere.” Id. With respect to Father,
Child “has a lot of distrust,” especially in regards to Father’s “inability to or
struggle to say no to [Mother] or put up boundaries with [Mother]” and
“Father’s drinking.” Id. at 72-74. Although Father participated in several of
Child’s therapy sessions, Carmosin opined that Father had made “[m]inimal to
no[]” progress with Child and that Father was not in a position to reassume the
role of Child’s primary caregiver. Id. at 74-75. Mother did not participate in
Child’s therapy sessions.
[9] On October 27, 2016, DCS filed its petition to terminate Mother’s and Father’s
parental rights over Child. During the ensuing evidentiary hearing, DCS
submitted the records of the CHINS proceedings, which included an April 17,
2015, order that prohibited Mother from visiting Child until she “maintain[ed]
3
It is not clear from the record who at Wabash Valley Alliance diagnosed Child.
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thirty (30) days of clean drug screens.” Ex. Vol. 1 at 32. Mother repeatedly
failed her drug tests, and her visits with Child never resumed. Mother also did
not do “[a]nything” with respect to DCS’s recommended services, which
included services to help Mother with her substance abuse. Tr. Vol. 2 at 165.
Mother’s last “direct interaction” with Child was prior to his January 2016
removal. Id. at 139. During the termination hearing, Mother testified that she
did not “have an address” but, instead, “stay[ed] with a friend here
and . . . there.” Id. at 214. She also agreed that she is not currently employed
and that she is not “in a position that [she] could provide for [Child’s] basic
needs . . . .” Id.
[10] With respect to Father, DCS submitted the CHINS records to show that Child
had been removed from Father’s care in January of 2016 after Father had
permitted Mother to be in the home with Child, contrary to Father’s initial
acknowledgment to the CHINS court that it was not in Child’s best interests to
do so. The CHINS records also demonstrated that, in February of 2016,
“[Father] continue[d] to deny any problem with [Mother] being in the home—
his statements around this are inconsistent, as he’ll sometimes say that he was
aware . . . but then will deny any knowledge.” Ex. Vol. 1 at 157. Further,
nearly a year after Child’s removal from Father’s care, in December of 2016, an
officer with the Lafayette Police Department went to Father’s home to serve an
arrest warrant on a third party, and Mother answered the door. The officer
subsequently observed paraphernalia and smelled the odor of freshly burnt
synthetic marijuana inside the home.
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[11] DCS also presented evidence of Father’s history of alcohol use, which included
three convictions for operating while intoxicated and a substantial number of
failed or missed alcohol screens between July 29, 2016, and November 4, 2016.
At the termination hearing, Father acknowledged that he has a problem with
alcohol. However, Father’s therapist, Dr. Cathy Streifel, testified that, even
though “the more commitment the individual has the more they’re going to
benefit” from various types of treatment, Father “didn’t really think he needed”
additional help with his problem. Tr. Vol. 3 at 63-64, 70.
[12] Finally, Child’s court-appointed special advocate, Kalub Hahne (“CASA
Hahne”) testified that the termination of Mother’s and Father’s parental rights
was in Child’s best interests. In particular, CASA Hahne testified that he was
concerned about Mother’s continued drug use, Father’s continued drinking,
and Child’s safety if left in Father’s care unsupervised. CASA Hahne further
testified that Child is “thriving” in foster care, especially with respect to his
school work and behavior. Id. at 141-43.
[13] On August 3, 2017, the trial court entered findings of fact and conclusions
thereon and terminated Mother’s and Father’s parental rights over the Child.
This appeal ensued.
Discussion and Decision
[14] We begin our review of this appeal by acknowledging that “[t]he traditional
right of parents to establish a home and raise their children is protected by the
Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe
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Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.
denied. However, a trial court must subordinate the interests of the parents to
those of the child when evaluating the circumstances surrounding a
termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d
832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is
proper where a child’s emotional and physical development is threatened. Id.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.
[15] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove:
(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
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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.
Ind. Code § 31-35-2-4(b)(2) (2017). DCS’s “burden of proof in termination of
parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.
Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting
I.C. § 31-37-14-2).
[16] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of
Fam. & Child. (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. Moreover, in deference to the trial
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court’s unique position to assess the evidence, we will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous.
Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.
Ct. App. 1999), trans. denied.
[17] 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 apply a two-tiered
standard of review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147
(Ind. 2005). First, we determine whether the evidence supports the findings
and, second, we determine whether the findings support the judgment. Id.“Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). If the evidence and inferences support the trial court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[18] On appeal, we first consider an evidentiary issue raised by Father. We then
turn to Mother’s assertion that the trial court erred when it concluded that the
conditions that resulted in Child’s removal and the reasons for his placement
outside of Mother’s care will not be remedied.4 Third, we separately consider
Father’s argument that the trial court erred when it concluded that there is a
reasonable probability that the continuation of the Father’s relationship with
4
Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not address the trial
court’s alternative conclusions supporting its termination of Mother’s and Father’s parental rights over Child.
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Child poses a threat to Child’s well-being. Last, we consider Mother’s and
Father’s arguments that the trial court erred when it concluded that the
termination of their parental rights is in Child’s best interest.
Issue One: Admission of Father’s Alcohol Screens
[19] We first consider Father’s argument that the trial court abused its discretion
when it admitted into evidence a positive alcohol screen against him. The trial
court has broad discretion to rule on the admissibility of evidence. Guilmette v.
State, 14 N.E.3d 38, 40 (Ind. 2014). We review its rulings for an abuse of that
discretion and reverse only when admission is clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial
rights. Id.[20] According to Father, DCS sought to admit “only some” of Father’s alcohol
screens,” namely, “only . . . select recent screens of Father that were positive for
alcohol.” Father’s Br. at 37. Father asserts that this “painted an inaccurate
picture regarding Father’s alcohol abuse” as it omitted “numerous other screens
that were negative for drugs/alcohol.” Id. Father continues that this inaccurate
picture was error under Indiana Evidence Rule 106, which states that, “[i]f a
party introduces all or part of a writing or recorded statement, an adverse party
may require the introduction, at that time, of any other part—or any other
writing or recorded statement—that in fairness ought to be considered at the
same time.”
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[21] In overruling Father’s objection on this issue, the trial court informed Father
that he could “admit the other screens” during his presentation of the evidence
“or you can ask about that question” on cross-examination. Tr. Vol. 2 at 163.
Father makes no argument on appeal as to how the trial court abused its
discretion under Evidence Rule 106 when it informed Father that he could
submit the negative alcohol screens himself or otherwise satisfy his concerns
through cross-examination. Moreover, Father does not discuss the fact that the
record demonstrates that at least some of his negative alcohol screens were in
the record and before the trial court. See Ex. Vol. 3 at 180-242. In short, Father
has not met his burden on appeal to demonstrate error, let alone reversible
error, on this issue.
Issue Two: The Conditions that Resulted in
Child’s Removal from Mother will not be Remedied
[22] We next consider Mother’s argument that the trial court erred when it
concluded that the conditions that resulted in Child’s removal from her will not
be remedied. In determining whether the evidence supports the trial court’s
finding that Mother is unlikely to remedy the reasons for Child’s removal, we
engage in a two-step analysis. E.M. v. Ind. Dep’t of Child Servs. (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). In the second step, the trial court must judge a parent’s fitness to care
for her child at the time of the termination hearing, taking into consideration
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evidence of changed conditions. Id. 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).
Pursuant to this rule, courts have properly considered evidence of a parent’s
prior criminal history, drug and alcohol abuse, history of neglect, failure to
provide support, and lack of adequate housing and employment. Id. Moreover,
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. Id.[23] Mother’s argument on this issue challenges only the factual findings underlying
the trial court’s judgment. According to Mother, the trial court erred: when it
found that Mother had failed to complete an August 2015 assessment; when it
found that Mother did not participate in services during a time of incarceration
for contempt of court, which the court had ordered her to serve for not
participating in services; when it found that Mother had failed to participate in
inpatient treatment; and when it found that Mother had failed to submit to all
drug screens requested.
[24] Assuming for the sake of argument that the trial court erred in each of those
findings, we still cannot say that the trial court’s conclusion that the conditions
that resulted in Child’s removal from Mother will not be remedied is clearly
erroneous. The record is clear that Child was removed from Mother’s care
because of her drug use and his repeated school absences. Throughout the
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ensuing proceedings, Mother continued to use drugs and fail drug screens and
only had minimal involvement in Child’s life. She repeatedly failed to fully
participate in or complete recommended services. And, at the evidentiary
hearing on DCS’s termination petition, she conceded that she is unemployed,
living “here and . . . there” with friends, and unable to provide for Child’s basic
needs. Tr. Vol. 2 at 214. The trial court’s conclusion that the conditions that
resulted in Child’s removal from Mother will not be remedied is not clearly
erroneous.
Issue Three: Continuation of the Father-Child
Relationship Poses a Threat to Child’s Well-Being
[25] We thus turn to Father’s argument that the trial court erred when it concluded
that the continuation of Father’s relationship with Child poses a threat to
Child’s well-being. A trial court need not wait until a child is irreversibly
influenced by a deficient lifestyle such that his physical, mental, and social
growth is permanently impaired before terminating the parent-child
relationship. Shupperd v. Miami Cty. Div. of Fam. & Child. (In re E.S.), 762 N.E.2d
1287, 1290 (Ind. Ct. App. 2002). When the evidence shows that the emotional
and physical development of a child in need of services is threatened,
termination of the parent-child relationship is appropriate. Id.[26] Father asserts that he is not a threat to Child’s well-being. In particular, Father
shifts blame to DCS for its purported “delay [in] providing him with adequate
services and treatment” for his alcohol problem, Father’s Br. at 33; he asserts
that his therapy sessions were aimed not at alcohol abuse but at his relationship
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with Mother; he states that he was compliant with and completed various
services; and he asserts that his relationship with Child was improving. Father
also states that he “was more effective at disciplining Child than the foster
parents” and that, “despite the suggestion that . . . Child’s aggressive behavior
was improved after being placed with foster parents, . . . Child’s behavior was
mostly unchanged throughout the CHINS case.” Id. at 35. But Father’s
arguments on appeal merely seek to have this Court reweigh the evidence,
which we cannot do.
[27] The evidence most favorable to the trial court’s judgment demonstrates that the
trial court did not err when it concluded that the continuation of Father’s
relationship to Child posed a threat to Child’s well-being. Following Mother’s
February 2015 failed drug screen, the trial court ordered Mother to be removed
from the home. At that time, Father agreed that removal of Mother from
Child’s home was in Child’s best interests. Nonetheless, in January of 2016,
Mother was found inside the home along with contraband. In February of
2016, after the court had also removed Child from Father’s care, Father
“continue[d] to deny any problem with [Mother] being in the home . . . .” Ex.
Vol. 1 at 157. In December of 2016—nearly a year after Child’s removal from
Father’s care and during the pendency of the termination proceedings—Mother
was again found inside Father’s home, along with evidence of recent drug use.
Moreover, the evidence readily demonstrates that Father has an alcohol
problem and that he continues to struggle with that problem.
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[28] Carmosin, Child’s therapist, testified that Child does not trust Father because of
Father’s “inability to or struggle to say no to [Mother] or put up boundaries
with [Mother]” and also due to “Father’s drinking.” Tr. Vol. 2 at 72-74.
Carmosin further testified that Child’s relationship with Father causes Child “a
lot of anxiety,” which adversely manifests itself in Child’s behavior and
performance at school. Id. at 76. In sum, the evidence shows that Child’s
emotional and physical development is threatened by Child’s relationship with
Father. As such, we cannot say that the trial court clearly erred on this issue.
Issue Four: Child’s Best Interests
[29] Finally, we turn to Mother’s and Father’s arguments that the termination of
their parental rights over Child is not in Child’s best interests. In determining
whether termination of parental rights is in the best interests of a child, the trial
court is required to look at the totality of the evidence. A.S. v. Ind. Dep’t. of Child
Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010). “[W]e have
previously held that the recommendation by both the case manager and child
advocate to terminate parental rights,” in addition to evidence supporting a
termination order under Indiana Code Section 31-35-2-4(b)(2)(B)(i) or (ii), is
“sufficient to show by clear and convincing evidence that termination is in the
child’s best interests.” L.S. v. Ind. Dep’t of Child Servs. (In re A.D.S.), 987 N.E.2d
1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.
[30] On this issue, Mother asserts that the DCS’s evidence “settled on the
assumption that . . . [C]hild was better off with the Foster Parents,” and that,
“[w]hen taking into consideration Mother[’s] and Father’s
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circumstances, . . . DCS did not prove by clear and convincing evidence that it
was in the best interest[s] of . . . [C]hild for the parent-child relationship to be
terminated.” Mother’s Br. at 17-18. Similarly, Father asserts that the totality of
the evidence “indicated that Father took significant positive steps to turn his life
around for the sake of himself and . . . Child.” Father’s Br. at 18. However,
Mother’s and Father’s arguments, again, simply seek to have this Court reweigh
the evidence in a manner that is most favorable to them, which we cannot do.
[31] Instead, considering only the evidence most favorable to the trial court’s
judgment, we must conclude that the trial court did not clearly err when it
concluded that the termination of Mother’s and Father’s parental rights over
Child was in Child’s best interests. In addition to the evidence described above
with respect to Issue Two and Issue Three, CASA Hahne testified that
termination of Mother’s and Father’s parental rights was in Child’s best
interests based on Mother’s continued drug use, Father’s continued drinking,
Child’s safety if left in Father’s care unsupervised, and Child’s “thriving” in
foster care, especially with respect to his school work and behavior. Tr. Vol. 3
at 141-43. Child’s case manager, Maci Webster, likewise recommended the
termination of Mother’s and Father’s parental rights. Tr. Vol. 2 at 112.
Accordingly, we cannot say that the trial court’s conclusion on this issue is
clearly erroneous.
Conclusion
[32] In sum, we affirm the trial court’s termination of Mother’s and Father’s
parental rights over Child.
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[33] Affirmed.
Mathias, J., and Barnes, J., concur.
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