In the Matter of the Involuntary Termination of the Parent-Child Relationship of B.D. and K.D. (Minor Children) and K.L-T. (Mother) 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
Feb 15 2019, 9:12 am
regarded as precedent or cited before any
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
Danielle Sheff Curtis T. Hill, Jr.
Sheff Law Office Attorney General
Indianapolis, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary February 15, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of B.D. and K.D. 18A-JT-2084
(Minor Children) and Appeal from the Marion Superior
K.L-T. (Mother), Court
The Honorable Marilyn A.
Appellant-Respondent,
Moores, Judge
v. The Honorable Larry Bradley,
Magistrate
The Indiana Department of Trial Court Cause Nos.
Child Services, 49D09-1802-JT-137, -138
Appellee-Petitioner
Crone, Judge.
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Case Summary
[1] K.L-T. (“Mother”) appeals the trial court’s order involuntarily terminating her
parental rights to her minor children, B.D. and K.D. (“the Children”). She
argues that the Indiana Department of Child Services (“DCS”) failed to present
clear and convincing evidence to support the trial court’s termination of her
parental rights. Concluding that DCS presented sufficient evidence, we affirm.
Facts and Procedural History
[2] Following an evidentiary hearing on July 26, 2018, the trial court made the
following relevant findings of fact:1
1. Mother is the mother of B.D. and K.D., minor children born
on December 16, 2011 and January 10, 2017.
….
3. The parental rights of the children’s father were involuntarily
terminated on May 29, 2018.
4. Child in Need of Services Petitions “CHINS” were filed on
B.D. and K.D. on January 16, 2017, after K.D. was born positive
for opiates and suffered from withdrawal symptoms. Mother
tested [positive] for opiates and cocaine.
5. The children were ordered detained and placed outside the
home at the January 17, 2017, initial hearing.
1
The trial court’s order references Mother and the minor children by their full names. We use “Mother” and
the Children’s initials where appropriate.
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6. The children were adjudicated in need of services on June 7,
2017, after a fact-finding hearing at which time Mother failed to
appear.
7. Disposition was held on July 5, 2017. Mother failed to appear
at the disposition.
8. The children had been removed from their mother for at least
six (6) months under a dispositional decree prior to this
termination action being filed on February 2, 2018.
9. Services to address issues of instability, substance abuse, and
past trauma were ordered and referred.
10. Prior to April of 2018, Mother failed to engage in any
service[s]. She instead avoided court and her whereabouts were,
at times, unknown.
11. In March of 2017, and prior to disappearing, Mother entered
Craine House as part of Community Corrections[.] She left
Craine House without authority.
12. Mother has been incarcerated since January of 2018, after
violating probation from a Theft conviction. Her out date is
October 31, 2018.
13. Mother testified as to classes she has taken while
incarcerated. These classes were ninety percent informational.
14. Alcoholics Anonymous and Narcotics Anonymous is offered
weekly at the Marion County Jail. Mother has attended nine
Alcoholics Anonymous sessions, the last being on May 16, 2018.
She has only attended two Narcotics Anonymous sessions, the
last being on May 4, 2018.
15. Although Mother testified she was studying for her GED
and would test shortly, her inmate records reflect that she
attended preparation sessions ten times, all being in February of
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2018.
16. Therapy was referred and an intake session was performed in
April of 2018 at the jail. Recommendations from the intake
session included Mother undergo group and individual therapy
for depression, anxiety, and past trauma, as well as complete an
intensive outpatient drug treatment program.
17. Due to conditions at the jail, therapy could not be done.
18. Mother has a history of criminal activity which includes
more than one theft conviction as well as a conviction for illegal
substances. She also has a pattern of violating probation.
19. Mother has a history of substance abuse which includes
alcohol, marijuana, cocaine, and opiates.
20. Mother was a daily heroin user, and last used in January of
2018, shortly before she became incarcerated.
21. Mother has not exercised parenting time with B.D. or K.D.
since the CHINS case opened. K.D. was a few days old.
22. Since March of 2017, Mother contacted the [DCS] family
case manager, once by phone and once by letter. She did not
request visitation.
….
25. The children have been placed with their maternal great-aunt
since their removal one and one-half years ago. This is the only
home K.D. has ever known.
26. The children have been observed doing well and having a
natural bond with their caretaker.
27. The children’s placement is preadoptive.
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28. Since Mother failed to take advantage of parenting time, it is
unknown what kind of bond would remain between B.D. and
her. Mother would be a stranger to K.D.
29. Due to not taking advantage of chances, the appropriateness
of the children’s placement, and the children’s right to
permanency, the family case manager believes terminating
[M]other’s parental rights would be in the children’s best
interests.
30. Given the length of time the CHINS cases have pended, the
children’s needs being met in their placement, and B.D.’s wishes,
the Guardian ad Litem is recommending adoption as being in the
best interests of the children.
Appealed Order at 1-3.
[3] Based upon these findings of fact, the trial court concluded that: (1) there is a
reasonable probability that the conditions that resulted in the Children’s
removal and continued placement outside the home will not be remedied by
Mother; (2) there is a reasonable probability that the continuation of the
relationship between Mother and the Children poses a threat to the Children’s
well-being; (3) termination of the parent-child relationship between Mother and
the Children is in the Children’s best interests; and (4) DCS has a satisfactory
plan for the care and treatment of the Children, which is adoption.
Accordingly, the trial court determined that DCS had proven the allegations of
the petition to terminate parental rights by clear and convincing evidence and
therefore terminated Mother’s parental rights. This appeal ensued.
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Discussion and Decision
[4] “The purpose of terminating parental rights is not to punish the parents but,
instead, to protect their children. Thus, although parental rights are of a
constitutional dimension, the law provides for the termination of these rights
when the parents are unable or unwilling to meet their parental
responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation
omitted). “[T]ermination is intended as a last resort, available only when all
other reasonable efforts have failed.” Id. A petition for the involuntary
termination of parental rights must allege in pertinent part:
(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). DCS must prove that termination is appropriate by
a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144
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(Ind. 2016). If the trial court finds that the allegations in a petition are true, the
court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[5] “We have long had a highly deferential standard of review in cases involving
the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d
85, 92 (Ind. Ct. App. 2014).
We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Where the trial court enters findings
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.
Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings
do not support the trial court’s conclusions or the conclusions do not support
the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).
Section 1 – Clear and convincing evidence supports the trial
court’s conclusion that there is a reasonable probability of
unchanged conditions.
[6] We first address the trial court’s conclusion that there is a reasonable
probability that the conditions that led to the Children’s removal and continued
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placement outside the home will not be remedied by Mother.2 In determining
whether there is a reasonable probability that the conditions that led to the
Children’s removal and continued placement outside the home will not be
remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,
989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions
led to their placement and retention in foster care.” Id. Second, “we
‘determine whether there is a reasonable probability that those conditions will
not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)
(citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second
step, the trial court must judge a parent’s fitness at the time of the termination
proceeding, taking into consideration evidence of changed conditions, and
balancing a parent’s recent improvements against “‘habitual pattern[s] of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989
N.E.2d at 1231). “A pattern of unwillingness to deal with parenting problems
and to cooperate with those providing social services, in conjunction with
unchanged conditions, support a finding that there exists no reasonable
probability that the conditions will change.” Lang v. Starke Cty. Office of Family
2
Mother also challenges the trial court’s conclusion that there is a reasonable probability that the
continuation of the parent-child relationship poses a threat to the Children’s well-being. However, Indiana
Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination
of parental rights, the trial court need only find that one of the three requirements of that subsection has been
established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
Ct. App. 2013), trans. denied. Accordingly, we will address only one of the three requirements.
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& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. The
evidence presented by DCS “need not rule out all possibilities of change; rather,
DCS need establish only that there is a reasonable probability that the parent’s
behavior will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.
2007).
[7] Here, the Children were originally removed from the home after K.D. tested
positive for opiates and suffered from withdrawal symptoms. Thereafter,
Mother failed to participate in the ordered services. Admittedly, she failed to
participate simply because she “didn’t want to participate.” Tr. Vol. 2 at 17.
Instead, she chose to go “on the run” to avoid arrest for her ongoing criminal
behavior. Moreover, since the beginning of the CHINS proceedings, Mother
never once visited with the Children or inquired about visiting with the
Children. Mother chose criminal behavior and her addictions over her
children.
[8] Mother blames much of her inability to make reunification efforts on her
current incarceration. Moreover, she complains that the evidence presented by
DCS concentrated on her past failures and did not take into account her new
self-declared dedication to changing her ways. However, it was the trial court’s
prerogative to look to Mother’s habitual patterns of conduct to determine
whether there is a substantial probability of future neglect or deprivation. The
trial court specifically noted that even while not incarcerated, Mother did
nothing toward reunification. The court further concluded that, due to
Mother’s pattern of criminal activity and failure to follow probation rules, it is
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reasonable to believe that Mother will not remain available as a parent even
after her release. Mother essentially asks that we reweigh the evidence in her
favor, and we will not. Clear and convincing evidence supports the trial court’s
conclusion that there is a reasonable probability that the conditions that led to
the Children’s removal and continued placement outside the home will not be
remedied by Mother.
Section 2 – Clear and convincing evidence supports the trial
court’s conclusion that termination of Mother’s parental
rights is in the Children’s best interests.
[9] We next address the trial court’s conclusion that termination of Mother’s
parental rights is in the Children’s best interests. In considering whether
termination of parental rights is in the best interests of a child, the trial court is
required to look beyond the factors identified by DCS and look 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 doing so, the trial court must subordinate the
interests of the parent to those of the child involved. Id. The trial court need not
wait until the child is irreversibly harmed before terminating parental rights. Id.
“The historic inability to provide adequate housing, stability, and supervision,
coupled with the current inability to provide the same, will support a finding
that continuation of the parent-child relationship is contrary to the child’s best
interests.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). The testimony
of service providers may support a finding that termination is in the child’s best
interests. McBride, 798 N.E.2d at 203.
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[10] DCS family case manager Shanika Carter testified that she believed that
continuation of Mother’s relationship with the Children was not in their best
interests. She noted that “creating a safe and stable home free from illegal
activity and illegal substance abuse did not seem to be a priority” for Mother.
Tr. Vol. 2 at 66-67. She opined that the Children deserve “a parent that is able
to provide them with a safe and stable home … [and] [t]hey deserve the right to
permanency.” Id. at 67. She stated that the Children are happy and seem very
bonded to their current preadoptive caregiver.
[11] Similarly, Ed Walker, the Children’s guardian ad litem, testified that he
recommended termination of Mother’s parental rights. He opined that the
Children needed and desired the permanency that adoption could give them.
He emphasized the length of time the case had been pending, noting that K.D.
had been out of Mother’s care since he was only a few days old, and that six-
year-old B.D. had expressed a desire to stay with his current caregiver. He
stated that he did not believe that Mother should be given any additional time
to complete services and that adoption by their current placement was in the
Children’s best interests. As our supreme court has often stated, “children have
an interest in terminating parental rights that prevent adoption and inhibit
establishing secure, stable, long-term, continuous relationships.” K.T.K., 989
N.E.2d at 1230 (quoting In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). The
evidence of unchanged conditions coupled with the testimony of service
providers is sufficient to support the trial court’s conclusion that termination of
Mother’s rights is in the Children’s best interests.
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Section 3 – Adoption is a satisfactory plan for the care and
treatment of the Children.
[12] Finally, Mother challenges the trial court’s conclusion that there is a
satisfactory plan for the care and treatment of the Children. While the trial
court must find that there is a satisfactory plan for the care and treatment of the
child, “[t]his plan need not be detailed, so long as it offers a general sense of the
direction in which the child will be going after the parent-child relationship is
terminated.” In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008).
Generally, adoption is a satisfactory plan. Id.
[13] It is clear from the record, and the trial court’s findings, that the permanency
plan here is for the Children to be adopted by their current caregiver, their
maternal great-aunt. Thus, there is clearly a general sense of direction in which
these Children will be going, and we reject Mother’s insistence that DCS was
required to present more detailed evidence regarding the specific living
circumstances at the preadoptive home. The remainder of Mother’s argument
against this plan is simply a reiteration of her plea that she be given more time
to engage in reunification efforts after her release from incarceration. We are
not wholly unsympathetic to Mother, but we must defer to the trial court’s
weighing of the evidence here. Decisions to terminate parental rights “are
among the most difficult our trial courts are called upon to make” and are very
fact sensitive. E.M. v. Ind. Dep't of Child Servs., 4 N.E.3d 636, 640 (Ind. 2014).
We will reverse a termination of parental rights only upon a showing of “clear
error” – that which leaves us with a definite and firm conviction that a mistake
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has been made. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). Based
on the record before us, we cannot say that the trial court’s termination of
Mother’s parental rights to the Children was clearly erroneous. Accordingly,
the trial court’s termination order is affirmed.
[14] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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