In the Matter of the Involuntary Termination of the Parent-Child Relationship of: K.B. (Minor Child) and K.Y. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                      FILED
    this Memorandum Decision shall not be                                  Aug 30 2019, 8:34 am
    regarded as precedent or cited before any
    court except for the purpose of establishing                                CLERK
    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
    Jeffrey S. Arnold                                         Curtis T. Hill, Jr.
    Columbia City, Indiana                                    Attorney General of Indiana
    Monika Prekopa Talbot
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Involuntary                          August 30, 2019
    Termination of the Parent-Child                           Court of Appeals Case No.
    Relationship of:                                          19A-JT-687
    K.B. (Minor Child)                                        Appeal from the Whitley Circuit
    Court
    and
    The Honorable Matthew J.
    K.Y. (Mother),                                            Rentschler, Judge
    Appellant-Respondent,                                     Trial Court Cause No.
    92C01-1809-JT-54
    v.
    Indiana Department of Child
    Services,
    Appellee-Petitioner.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019                  Page 1 of 14
    Riley, Judge.
    STATEMENT OF THE CASE
    [1]   Appellant-Respondent, K.Y. (Mother), appeals the termination of her parental
    rights to her minor child, K.B. (Child).
    [2]   We affirm.
    ISSUE
    [3]   Mother raises one issue on appeal, which we restate as follows: Whether the
    Department of Child Services (DCS) presented clear and convincing evidence
    to support the trial court’s termination of Mother’s parental rights.
    FACTS AND PROCEDURAL HISTORY
    [4]   Mother is the mother of Child, born on September 17, 2012. Mother and Child
    initially became involved with DCS in October 2014, when Child was removed
    from Mother’s care because Mother’s roommate was manufacturing
    methamphetamine in the apartment. DCS filed a Child in Need of Services
    (CHINS) petition whereupon Child was placed with K.B., the Child’s
    biological father (Father). 1 Mother agreed to sign custody of the Child over to
    Father and the case was dismissed a few months later.
    1
    The trial court also terminated Father’s rights to his Child, but he did not appeal the decision. Facts
    pertaining to Father will be included if necessary for this appeal.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019                     Page 2 of 14
    [5]   Mother and Father did not remain separated. On March 24, 2017, DCS
    received a report of a domestic altercation between Mother and Father, during
    which Mother left the residence intoxicated, and took the Child with her.
    Family Case Manager, Monica Straight (FCM Straight), visited with both
    Mother and Father. The Child was not removed at that time and DCS offered
    the family an informal adjustment whereby Mother and Father were allowed to
    retain custody of the Child under certain conditions.
    [6]   In June 2017, DCS received a report of suspected drug use in Mother’s
    residence. During the investigation of the report, DCS learned that Mother had
    left Child with a caregiver for more than eighteen hours and was unable to get
    the Child because she was “with another male who was under the influence.”
    (Transcript p. 98). When Mother returned, she left the county with the Child
    and their whereabouts were unknown for two and one-half days. Eventually,
    FCM Straight located Mother and Child in Milford, Indiana, and initiated an
    unplanned visit. Confronted by FCM Straight, Mother refused to take a drug
    test, which refusal was in violation of the terms of her informal adjustment, and
    DCS detained the Child.
    [7]   On June 29, 2017, DCS filed an affidavit of probable cause, alleging the Child
    to be a CHINS. That same day, the trial court conducted an emergency
    detention hearing and upheld the Child’s detention, placing him with his
    paternal grandparents. At a hearing conducted on July 31, 2017, Father
    admitted that Child was a CHINS, and Mother admitted likewise during a
    hearing on August 21, 2017. As part of the dispositional order, Child’s parents
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 3 of 14
    were required to participate in services, including, among others, maintain
    suitable, safe, and stable housing, secure and maintain employment, not
    consume alcohol or illegal substances, complete a parenting assessment and all
    recommendations therefrom, and complete substance abuse treatment. Child
    was eventually removed from his placement with paternal grandparents because
    of suspected sexual abuse by grandfather. On January 5, 2018, Child was
    placed with a foster care provider in Columbia City, Indiana.
    [8]   Dawn Scott (Scott), a licensed clinical therapist, specializing in addiction,
    worked with both Mother and Father starting in May 2017. The therapy
    involved “domestic violence, relationship issues and other underlying issues.”
    (Tr. p. 25). During the approximately one year he counseled Mother, they met
    about forty times. Nevertheless, Mother was not successful as she “wasn’t
    engaging [in] treatment recommendations” and continued using drugs. (Tr. p.
    27). Mother and Father had a toxic relationship and even though they
    separated numerous times during Scott’s involvement with the parents, when
    they were together, Mother would relapse.
    [9]   DCS offered home-based services to Mother and referred her for a substance
    abuse assessment, a parenting assessment, and a psychological assessment. She
    was inconsistent in complying with the services and failed to maintain contact
    with DCS. Upon DCS’s referral, Mother and Child entered into therapy
    sessions at the Villages of Indiana with therapist Jennifer Lawson. After a
    single meeting, Mother failed to attend any follow-up visits. In June of 2018,
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 4 of 14
    Mother’s visits with the Child were suspended due to Mother’s inconsistency
    with services and her failure to maintain contact with DCS.
    [10]   During the course of the CHINS proceedings, Mother was mostly transient and
    resided in approximately twenty different locations: homeless shelters,
    residential treatment centers, hospitals, jails, and a car. At times, DCS
    attempted to move the services to the different places where Mother was
    located. DCS was not always successful as Mother moved often and her
    whereabouts were unknown on many occasions.
    [11]   Mother resided at Noble House Ministries, a homeless shelter, domestic
    violence shelter and a recovery home on three different times. In March 2015,
    she was evicted after approximately one month for a curfew violation. In
    November 2017, Mother was evicted after two weeks because she failed to
    return after receiving a pass. In October 2018, Mother was evicted for
    intoxication.
    [12]   From November 30, 2017 though March 3, 2018, Mother lived at Charis
    House, a homeless shelter for women and children. Although Mother was
    given a lot of leniency with the house rules, she was nevertheless evicted
    because she falsely asserted that she needed to go to the hospital because of a
    head injury. In April and May of 2018, Mother resided at Serenity House, a
    transitional living facility for men and women in Auburn, Indiana. She left on
    her own, and her exit was deemed unsuccessful.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 5 of 14
    [13]   In early 2018, Mother was arrested for possession of methamphetamine and
    paraphernalia. She was subsequently charged with Level 6 felony nonsupport
    of a dependent. Mother entered the Noble County drug court in October 2018.
    On her first day, Mother tested positive for alcohol. During the following days,
    Mother tested positive for alcohol and Xanax. The trial court issued a warrant
    and Mother was taken into custody on October 15, 2018. She remained in jail
    until November 26, 2018.
    [14]   After being placed with B.E., a foster care provider in Columbia City, Indiana,
    the Child’s behavior improved drastically. Prior to his placement, Child was
    very temperamental. He went from “a little kid who was screaming and
    running around [FCM Straight’s] office cussing and throwing a fit, to a kid who
    is learning to control his emotions.” (Tr. p. 116). He is now learning to swim
    and ride a bike, and is proud of his accomplishments. He fits in well with his
    foster family, calling his foster parents mama and papa, and acting as a sibling
    to the other children in the house. Child’s Court Appointed Special Advocate
    (CASA) David Lowe (CASA Lowe) visited the Child at his grandparents’
    residence, at school, and at his foster parents’ placement. While Child was
    initially a “wild child,” CASA Lowe has seen a complete turnaround in his
    behavior (Tr. p. 128). He is now a “loving little boy,” he fits in well with his
    classmates, and he is a “good kid all the way around.” (Tr. p. 128). After
    receiving therapy, Child now knows boundaries and is respectful of other
    people’s things. He needs stability, structure and predictability, which is offered
    by his foster parents, who intend to adopt her.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 6 of 14
    [15]   DCS filed its petition for termination of Mother’s parental rights on September,
    25, 2018. On November 26, 2018, after DCS filed its termination petition,
    Mother entered Rose Home, a facility that helps women in recovery. When
    Mother first applied, she was incarcerated but after a successful interview,
    Mother was admitted. Mother only became compliant with DCS’ s services
    when she entered Rose Home at the end of November 2018. At the time of the
    termination hearing, Mother was on home detention with an ankle monitor
    because of a drug related conviction. She was still on probation for her drug
    case and faced a felony non-support of dependent charge. At the hearing, FCM
    Straight opined that returning the Child to Mother would be a regression, and
    detrimental to his mental and physical health.
    [16]   On March 1, 2019, the trial court issued its Order, terminating Mother’s
    parental rights to her Child and concluding, in pertinent part, that 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,
    and there is a reasonable probability that the continuation of the parent-child
    relationship poses a threat to the well-being of the Child. Finding termination
    in the best interests of the Child, the trial court terminated the Mother-Child
    relationship.
    [17]   Mother now appeals. Additional facts will be provided as necessary.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 7 of 14
    DISCUSSION AND DECISION
    A. Standard of Review
    [18]   Mother challenges the termination of her parental rights to the Child. The
    Fourteenth Amendment to the United States Constitution protects the
    traditional right of parents to establish a home and raise their children. Bester v.
    Lake Cnty. Office of Family & Children, 
    839 N.E.2d 143
    , 147 (Ind. 2005). “A
    parent’s interest in the care, custody, and control of his or her children is
    ‘perhaps the oldest of the fundamental liberty interests.’” 
    Id.
     (quoting Troxel v.
    Granville, 
    530 U.S. 57
    , 65 (2000)). However, parental rights “are not absolute
    and must be subordinated to the child’s interests in determining the proper
    disposition of a petition to terminate parental rights.” 
    Id.
     If “parents are unable
    or unwilling to meet their parental responsibilities,” termination of parental
    rights is appropriate. 
    Id.
     We recognize that the termination of a parent-child
    relationship is “an ‘extreme measure’ and should only be utilized as a ‘last
    resort when all other reasonable efforts to protect the integrity of the natural
    relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child
    Servs., 
    39 N.E.3d 641
    , 646 (Ind. 2015).
    [19]   Indiana courts rely on a “deferential standard of review in cases concerning the
    termination of parental rights” due to the trial court’s “unique position to assess
    the evidence.” In re A.K., 
    924 N.E.2d 212
    , 219 (Ind. Ct. App. 2010), trans.
    dismissed. Our court neither reweighs evidence nor assesses the credibility of
    witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 
    989 N.E.2d 1225
    , 1229 (Ind.
    2013). We consider only the evidence and any reasonable inferences that
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 8 of 14
    support the trial court’s judgment, and we accord deference to the trial court’s
    “opportunity to judge the credibility of the witnesses firsthand.” 
    Id.
    B. Termination of Parental Rights Statute
    [20]   In order to terminate a parent’s rights to his child, DCS must 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.
    ****
    (iii) The child has been removed from the parent and has been
    under the supervision of a local office . . . 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 [CHINS] . . . ;
    (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 [CHINS];
    (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.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 9 of 14
    
    Ind. Code § 31-35-2-4
    (b)(2). DCS must prove each of the foregoing elements by
    clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 
    15 N.E.3d 85
    ,
    92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the
    existence of a fact to ‘be highly probable.’” 
    Id.
     On appeal, Mother does not
    challenge the trial court’s finding that the Child has been removed from the
    home for the requisite period of time, that there is a satisfactory plan for the
    care and treatment of the Child, or that termination of her parental rights is in
    the best interests of the Child.
    C. Conditions have not been remedied 2
    [21]   Mother claims that there is insufficient evidence to support the trial court’s
    determination that the conditions which resulted in the removal of the Child
    have not been remedied. It is well established that “[a] trial court must judge a
    parent’s fitness as of the time of the termination hearing and take into
    consideration evidence of changed conditions.” Stone v. Daviess Cnty. Div. of
    Children & Family Servs., 
    656 N.E.2d 824
    , 828 (Ind. Ct. App. 1995), trans. denied.
    In judging fitness, a trial court may properly consider, among other things, a
    parent’s substance abuse and lack of adequate housing and employment.
    2
    Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, DCS is required to prove
    only one of three listed elements. See In re A.K., 
    924 N.E.2d at 220-21
    . In this case, the trial court based its
    termination decision on DCS’s satisfaction of Indiana Code section 31-35-2-4(b)(2)(B)(i) & (ii)—that the
    conditions that resulted in the Child’s removal has not been remedied and the continuation of the parent-
    child relationship posed a threat to the Child’s well-being. Because Mother fails to challenge the trial court’s
    conclusion that a continued parent-child relationship would pose a threat to the Child, DCS satisfied the
    requirements of Indiana Code section 31-35-2-4(b)(2)(B). Nevertheless, because of the important rights at
    stake, we will address Mother’s argument.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019                     Page 10 of 14
    McBride v. Monroe Co. OFC, 
    798 N.E.2d 185
    , 199 (Ind. Ct. App. 2003). The trial
    court may also consider a parent’s failure to respond to services. Lang v. Starke
    Co. OFC, 
    861 N.E.2d 366
    , 372 (Ind. Ct. App. 2007), trans. denied. “[H]abitual
    patterns of conduct must be evaluated to determine whether there is a
    substantial probability of future neglect or deprivation.” Stone, 
    656 N.E.2d at 828
    . A trial court “need not wait until the children are irreversibly influenced
    by their deficient lifestyle such that their physical, mental and social growth is
    permanently impaired before terminating the parent-child relationship.” 
    Id.
    Furthermore, “[c]lear and convincing evidence need not reveal that the
    continued custody of the parents is wholly inadequate for the child’s very
    survival. Rather, it is sufficient to show by clear and convincing evidence that
    the child’s emotional and physical development are threatened by the
    respondent parent’s custody.” K.T.K., 989 N.E.2d at 1230.
    [22]   In support of her argument that the conditions which resulted in the removal of
    the Child have been remedied, Mother refers to her change in behavior, starting
    in November 2018 through the date of trial in February 2019, which coincided
    with her entry in the drug court program and residency at Rose Home. She
    claims to now have stable housing, to be substance free, and to have engaged in
    meaningful counseling.
    [23]   At the end of June 2017, DCS removed the Child from Mother’s care because
    of the domestic abuse with Father, Mother’s alcohol and substance abuse, and
    her neglect of the Child. During the next sixteen months, Mother failed to
    undertake any steps towards the reunification with Child. She did not address
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 11 of 14
    her alcohol and drug addiction, she was inconsistent with services, and failed to
    maintain contact with DCS. In June 2018, Mother’s visits with Child were
    suspended due to her failure to complete services and remain in contact with
    DCS. During the pendency of the CHINS and termination proceedings,
    Mother was transient and lived in different homeless shelters and half-way
    houses. She was frequently evicted from the shelters due to noncompliance
    with the rules.
    [24]   While we agree with Mother that her behavior improved after she entered the
    drug court program and took up residency at Rose Home, we also note that this
    change occurred after DCS filed its petition for termination of her parental
    rights to the Child. Nonetheless, on her first day with the drug court program,
    Mother tested positive for alcohol, and on subsequent days, she tested positive
    for alcohol and Xanax. Mother was arrested and remained in jail from October
    15, 2018 until she entered Rose Home on November 26, 2018. At Rose Home,
    Mother finally started complying with the drug court and the home’s rules.
    [25]   Although Mother’s recent compliance is commendable, it only commenced
    one-and-one-half year after DCS instituted the informal adjustment and after
    the agency filed its termination petition. At the termination hearing, FCM
    Straight observed that Mother’s habitual pattern consists of entering a facility
    where she initially would do well but subsequently become noncompliant and
    would leave the program without completing it successfully. Although FCM
    Straight credited Mother for her progress at Rose Home, she also advised that
    Mother had an ankle monitor and an incentive to follow her programs because
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 12 of 14
    otherwise she would be required to serve thirty months in prison. Furthermore,
    while Mother acknowledges that her marriage to Father is abusive and
    violent—and a factor in DCS’s detainment of the Child—Mother was still
    married to him at the time of the termination hearing. The last time the parents
    talked, Mother initiated the contact with Father because she missed him. Even
    though Mother testified that she was going to divorce Father and had collected
    the paperwork, she advised that she would file for divorce when she “figure[d]
    out how to fill it out and file it.” (Tr. p. 135).
    [26]   A trial court is “within its discretion to ‘disregard the efforts Mother made only
    shortly before termination and to weigh more heavily Mother’s history of
    conduct prior to those efforts.’” K.T.K., 989 N.E.2d at 1234. “Requiring trial
    courts to give due regard to changed conditions does not preclude them from
    finding that parents’ past behavior is the best predictor of their future behavior.”
    In re E.M., 
    4 N.E.3d 636
    , 643 (Ind. 2014). Mindful of this guideline, the trial
    court observed in its Order, that “[d]espite Mother’s recent progress, and in
    light of the overall record of tremendous volatility, the [c]ourt is deeply
    skeptical of Mother’s ability to turn her recent successes into long-term stability
    for” the Child. (Appellant’s App. p. 32). Here, the evidence presented clearly
    and convincingly shows a reasonable probability exists that the conditions that
    led to the Child’s removal from Mother’s care will not be remedied. Mother’s
    recent turnaround in behavior and compliance with DCS’s services must be
    evaluated in light of a threat of thirty months of incarceration and a highly
    leveraged and supervised existence by the drug court and Rose Home for
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 13 of 14
    Mother to attain this change. There is no plan, nor even a semblance thereof,
    in place for Mother after her residency at Rose Home comes to an end and she
    is faced with the pressures of everyday life and the responsibility of maintaining
    a household. Accordingly, we find that the trial court’s conclusion that there is
    a reasonable probability that the conditions that resulted in the Child’s removal
    from Mother’s care will not be remedied was not clearly erroneous.
    CONCLUSION
    [27]   Based on the foregoing, we conclude that DCS presented clear and convincing
    evidence to support the trial court’s Order terminating Mother’s parental rights
    to the Child.
    [28]   Vaidik, C. J. and Bradford, J. concur
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-687 | August 30, 2019   Page 14 of 14