In the Matter of the Termination of the Parent-Child Relationship of T.J., A.J., and Z.K., Minor Children, E.K., Mother, and G.K., Father v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any May 31 2019, 8:52 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
MOTHER Curtis T. Hill, Jr.
Tonja V. Kinder Attorney General of Indiana
Monroe Co. Public Defender David E. Corey
Bloomington, Indiana Deputy Attorney General
ATTORNEY FOR APPELLANT FATHER Indianapolis, Indiana
Stuart K. Baggerly
Monroe Co. Public Defender
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination May 31, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of T.J., A.J., and Z.K., Minor 18A-JT-2170
Children Appeal from the Monroe Circuit
E.K., Mother, and G.K., Father, Court
The Honorable Stephen R. Galvin,
Appellants,
Judge
v. Trial Court Cause Nos.
53C07-1712-JT-974
53C07-1712-JT-975
The Indiana Department of
53C07-1712-JT-976
Child Services,
Appellee.
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Brown, Judge.
[1] E.K. (“Mother”) appeals the involuntary termination of her parental rights with
respect to her children, T.J., A.J., and Z.K., and G.K. (“Father,” and together
with Mother, “Parents”) appeals the involuntary termination of his parental
rights with respect to his child, Z.K. We affirm.
Facts and Procedural History
[2] Mother is the parent of three children, T.J., born on June 22, 2011, A.J., born
on August 8, 2012, and Z.K., born on November 29, 2014. Father is the father
of Z.K. Tr.J. is the father of T.J., and J.H. is the father of A.J. 1
[3] In December 2015, the Department of Child Services (“DCS”) filed petitions
alleging the children were in need of services. 2 On February 29, 2016, the court
entered an order finding Z.K. to be a child in need of services (“CHINS”). On
July 11, 2016, the court entered a Dispositional Order and Six Month Review
Order with respect to Z.K., which ordered Parents to complete certain services.
On August 4, 2016, the court entered an order finding T.J. and A.J. to be
CHINS and entered a dispositional order. On October 16, 2017, the court
entered an Order on Permanency Review stating that Mother was unable or
unwilling to put the skills she is taught into practice, tested positive for THC on
1
The court also terminated the parental rights of Tr.J. and J.H., and they do not appeal the termination of
their parental rights.
2
The record does not contain a copy of these petitions.
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multiple occasions, failed to appear for drug screens, violated safety plans, and
struggled in her relationship with Father. The order stated that Father had not
participated in certain services, had been terminated from his domestic violence
program, and was arrested for domestic violence against Mother in May 2017
and for theft in July 2017. The court changed the permanency plan to
termination of parental rights and adoption.
[4] On December 26, 2017, DCS filed verified petitions for the involuntary
termination of the parent-child relationship between Mother and A.J., T.J., and
Z.K., and between Father and Z.K. On May 17 and June 13, 2018, the court
held hearings on the petitions.
[5] On August 2, 2018, the court entered a twenty-one page order terminating the
parent-child relationships with 114 findings of fact. The court found domestic
violence between Mother and Tr.J.; Mother admitted the domestic violence in
the home was dangerous for T.J.; Father had a history of domestic violence;
Mother was homeless for a period of time; and Mother took no steps to protect
T.J. when he was living with Tr.J. and was aware there was a registered sex
offender living in the same home. It found that Father was charged with
domestic battery against Mother on July 23, 2014; Mother reported that a
pencil was shoved in her eye; and Father pled guilty to domestic battery as a
class A misdemeanor on January 26, 2015. It found that Z.K. was found at the
home unsupervised on December 1, 2015; Parents were found sleeping upstairs;
and they admitted they had left Z.K. downstairs for several hours. It also found
that police officers found one-year-old A.J. locked in her room on May 26,
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2015; Mother stated that she and Father locked A.J. in her room each night to
prevent her from leaving the room; and Mother admitted that she had punched
Father in the stomach and hit him with her purse.
[6] The court noted that Guardian ad litem Melissa Richardson (“GAL
Richardson”) testified that the children were starving for consistency and
predictability and when she attempted to explain that the children needed a
primary caregiver, it became clear that Mother did not understand what that
meant. During May and June, 2016, DCS offered intensive in-home services to
Parents but domestic violence continued between Parents; on June 15, 2016,
Father shoved Mother into a vacuum cleaner in T.J.’s presence; Mother would
not allow Family Case Manager Amanda Grossi (“FCM Grossi”) to
photograph her injuries because she stated that she was not sure they were
caused by Father; a safety plan created to prevent further domestic violence was
not followed; and on July 11, 2016, the children were removed from Mother’s
care due to ongoing drug use, continued domestic violence, inappropriate
discipline by Father, and lack of compliance with services. It found that a new
incident of domestic violence occurred in May 2017 when Father choked
Mother in T.J.’s presence to the point where she could not breathe; Father was
arrested for domestic battery; and Mother minimized his behavior and stated
that “he only choked me a little bit.” Appellants’ Appendix Volume II at 17.
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[7] The court found that T.J. reported prior sexual abuse and was struggling with
sexually inappropriate behaviors and Parents struggled to understand the
importance of the safety plans put in place for T.J. and his siblings and did not
follow the safety plans. It found that A.J. had been diagnosed with PTSD,
threatened to kill herself, and required a consistent and stable environment. It
found that Parents were self-medicating with marijuana; Mother would take her
medication as prescribed at times but continued to use marijuana; and Mother
ceased taking her medication in November or December 2017 at Father’s
urging. It found that Mother did not complete her psychological evaluation as
ordered; she stated on two occasions that she could not handle Father’s
behaviors and needed to check herself into the mental health unit at
Bloomington Hospital; she participated in less than half of her scheduled drug
screens and only three in 2018; and she regularly admitted to using marijuana.
[8] The court noted that GAL Richards testified that Mother is not benefitting from
services and that, despite years of intensive services, Mother periodically states
that she does not understand why her children were removed from her care. It
found that Father never completed treatment; he told his therapist, Ron Smith,
on February 18, 2016, that if his wife cheats on him and does not tell him first,
he will kill her and her ex-boyfriend; he came to counseling sessions while
impaired and could not maintain sobriety; Mother called Father’s home-based
therapist in November or December 2017 and the therapist could hear
screaming; Father does not believe that he is a batterer or that he needs
treatment; he threatened to harm himself by jumping off a parking garage in in
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May 2016; and he participated in only 63 of 147 possible drug screens and
completed only three in 2018.
[9] The court concluded that there was a reasonable probability that the conditions
which resulted in the removal of the children or the reasons for placement
outside the home would not be remedied, and that the continuation of the
parent-child relationship posed a threat to the well-being of the children. It also
concluded that termination of the parent-child relationship was in the best
interests of the children.
Discussion
[10] The issue is whether the evidence is sufficient to support the termination of the
parental rights of Parents. In order to terminate a parent-child relationship,
DCS is required to allege and prove, among other things:
(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
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(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[11] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. We do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
from the evidence. Id. We confine our review to two steps: whether the
evidence clearly and convincingly supports the findings, and then whether the
findings clearly and convincingly support the judgment. Id.
[12] Reviewing whether the evidence clearly and convincingly supports the findings,
or the findings clearly and convincingly support the judgment, is not a license to
reweigh the evidence. Id. “[W]e do not independently determine whether that
heightened standard is met, as we would under the ‘constitutional harmless
error standard,’ which requires the reviewing court itself to ‘be sufficiently
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confident to declare the error harmless beyond a reasonable doubt.’” Id.
(quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due
regard” to the trial court’s opportunity to judge the credibility of the witnesses
firsthand,’ and ‘not set aside [its] findings or judgment unless clearly
erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,
989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a
case that seems close on a ‘dry record’ may have been much more clear-cut in
person, we must be careful not to substitute our judgment for the trial court
when reviewing the sufficiency of the evidence.” Id. at 640. The involuntary
termination statute is written in the disjunctive and requires proof of only one of
the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).
[13] Mother argues that she was working to remedy the conditions that caused the
removal of the children. She challenges the court’s conclusions that she had not
benefitted from the services and that she did not think she needed parenting
instructions. She also asserts that the children are perfectly safe in her care and
that termination is not in the children’s best interests.
[14] Father argues that he made great strides in remedying the conditions that
caused Z.K. to be removed. He challenges the court’s conclusions that he had a
history of domestic violence, that domestic violence continued, and that he has
not benefitted or actively engaged with the multitude of services offered. He
also argues that termination is not in the child’s best interests.
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[15] DCS contends that Mother and Father do not specifically challenge any of the
court’s findings of fact and that they “rely almost exclusively on the court’s
termination order in their statement of the facts.” Appellee’s Brief at 29. It
asserts that the reasons for the children’s continued removal include the failure
to benefit from services, failure to provide appropriate care and supervision, and
failure to address their mental health, domestic violence, and substance abuse.
It also argues that termination is in the children’s best interests.
[16] In determining whether the conditions that resulted in the children’s removal
will not be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at
642-643. 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. at 643. In the second step, the trial court must judge a
parent’s fitness as of the time of the termination proceeding, taking into
consideration evidence of changed conditions, balancing a parent’s recent
improvements against habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation. Id. We entrust that
delicate balance to the trial court, which has discretion to weigh a parent’s prior
history more heavily than efforts made only shortly before termination. Id.
Requiring trial courts to give due regard to changed conditions does not
preclude them from finding that a parent’s past behavior is the best predictor of
his future behavior. Id.
[17] The statute does not simply focus on the initial basis for a child’s removal for
purposes of determining whether a parent’s rights should be terminated, but
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also those bases resulting in the continued placement outside the home. In re
N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider
evidence of a parent’s prior criminal history, history of neglect, failure to
provide support, lack of adequate housing and employment, and the services
offered by DCS and the parent’s response to those services. Id. Where there
are only temporary improvements and the pattern of conduct shows no overall
progress, the court might reasonably find that under the circumstances the
problematic situation will not improve. Id.
[18] To the extent Mother and Father do not challenge the court’s findings of fact,
the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373
(Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in
waiver of the argument that the findings were clearly erroneous), trans. denied.
[19] With respect to Mother and Father’s failure to make progress, we observe that,
in addition to the unchallenged findings, FCM Grossi testified that Mother had
been mostly compliant in services but had not internalized what she had
learned in those services to be able to apply them. When asked if there had
been any recent conversations with Mother that would indicate lack of progress
regarding her role as a parent in the CHINS case, she answered:
Sure, yes. Recently[, Mother] has made statements to me . . . for
example she called and reported that after a visit, she had a visit
with [T.J.] on a Tuesday, she called a week later and reported to
me that he had a bruise on his leg. [I] asked her why she didn’t
report it until now. [S]he stated to me that it wasn’t her
responsibility to do things like that. That she told the visit
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supervisor that DCS had taken her children away . . . and
therefore it . . . was not her responsibility to keep me informed of
those things.
Transcript Volume IV at 129. She also testified that she was asking the court to
terminate parental rights because “I don’t feel like . . . the reasons for removal
have been remedied, I don’t feel like the parents have made significant progress
in address [sic] what the department has asked them to address. Um I don’t
feel the children’s, the children would be safe in returning to the home today.”
Id. at 159.
[20] Cummings, the therapist who worked with Parents, testified that T.J. struggled
with sexually inappropriate behaviors and “really struggled” with loud noises or
chaos in general. Transcript Volume IV at 229. She testified that Parents were
not able to follow through with the safety plans. When asked if they made
statements that would demonstrate that they understood their role in parenting
a child with trauma, she answered: “Unfortunately no. I felt like they actually
fought me every time that I tried to explain how trauma was affecting . . . his
behaviors and I felt that they would choose not to use them because they felt
that the way they were parenting was appropriate.” Id. at 231-232.
[21] As to the drug issue, Mother indicated that there had been periods of time
recently where she did not complete drug screens and admitted that she
continued to use marijuana. GAL Richardson indicated that Mother and
Father ceased participation in almost all drug screens.
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[22] With respect to the domestic violence, GAL Richardson testified that Mother
minimized the impact of domestic violence. Smith, a therapist, testified that
Father participated in a domestic violence program, but was discharged twice
from the batterer’s treatment program. When asked if Father admitted to being
a batterer, FCM Grossi answered: “No. [I]n fact in all of my conversations
with [Father] again made it clear to me that he feels like batterer’s intervention
treatment was not what he needed.” Id. at 137.
[23] Based upon the court’s findings and the record, we conclude that clear and
convincing evidence supports the trial court’s determination that there is a
reasonable probability that the conditions leading to the children’s removal will
not be remedied.
[24] In determining what is in the best interests of a child, the trial court is required
to look beyond the factors identified by DCS and to the totality of the evidence.
McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). In so doing, the court must subordinate the interests of the parent
to those of the children. Id. Children have a paramount need for permanency
which the Indiana Supreme Court has called a central consideration in
determining the child’s best interests, and the Court has stated that children
cannot wait indefinitely for their parents to work toward preservation or
reunification and courts need not wait until the child is irreversibly harmed such
that the child’s physical, mental, and social development is permanently
impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d
at 647-648. However, focusing on permanency, standing alone, would
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impermissibly invert the best-interests inquiry. Id. at 648. Recommendations
by both the case manager and child advocate to terminate parental rights, in
addition to evidence that the conditions resulting in removal will not be
remedied, is sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. A.D.S. v. Ind. Dep’t of Child Servs., 987
N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.
[25] FCM Grossi testified that she was asking the court to terminate parental rights.
Cummings, the therapist, testified that she believed the children should proceed
with adoption. GAL Richardson testified that she recommended termination
of parental rights and that “the final outcome is still that we don’t have a stable
home for kids after years of trying.” Transcript Volume V at 75. When asked if
she believed adoption was in the children’s best interest, GAL Richardson
answered: “Absolutely.” Id. at 78. Based on the testimony, as well as the
totality of the evidence in the record and set forth in the trial court’s termination
order, we conclude that the court’s determination that termination is in the best
interests of the children is supported by clear and convincing evidence.
[26] Affirmed.
May, J., and Mathias, J., concur.
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