In the Matter of the Term. of the Parent-Child Rel. of: D.W., K.K., Ke.K., & L.W. and J.K. v. The Indiana Dept. of Child Services , 2012 Ind. App. LEXIS 262 ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
M. JOSH PETRUNIW DAVID E. COREY
Tiede Metz & Downs, P.C. DCS Central Administration
Wabash, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
FILED
Jun 06 2012, 9:27 am
COURT OF APPEALS OF INDIANA
CLERK
of the supreme court,
court of appeals and
tax court
IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP )
OF: )
)
D.W., K.K., Ke.K., & L.W. (Minor Children) )
)
And )
)
J.K. (Father), )
)
Appellant-Respondent, )
)
vs. ) No. 85A05-1109-JT-591
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE WABASH CIRCUIT COURT
The Honorable Robert R. McCallen, III, Judge
Cause No. 85C01-1103-JT-1; 85C01-1103-JT-2;
85C01-1103-JT-3 & 85C01-1103-JT-4
June 6, 2012
OPINION – FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, J.K. (Father), appeals the trial court’s termination of his
parental rights to his minor children, D.W., K.K., Ke.K., and L.W.1
We affirm.
ISSUE
Father raises one issue on appeal, which we restate as the following: Whether the
trial court properly terminated his parental rights to his four children.
FACTS AND PROCEDURAL HISTORY
Father and H.W. (Mother) are the parents of four children, D.W., born June 6,
2004; K.K., born August 29, 2005; Ke.K., born July 17, 2008; and L.W., born May 28,
2010. On August 20, 2009, the Wabash County Department of Child Services (DCS)
received a report that Mother had been sleeping in a car with her three eldest children,
had been leaving her children with various people to care for them, did not have a home
or a job, and had a substance abuse problem. The report also stated that Mother’s oldest
child, D.W., was of school age and was not enrolled in school. At the time, Father was
1
Although the trial court also terminated Mother’s parental rights to the four minor children, she is not a
party to this appeal.
2
incarcerated. He had been incarcerated since April 1, 2009, and his earliest possible
release date was September 2009.
On August 21, 2009, after investigating the report, DCS filed a petition alleging
that the children were children in need of services (CHINS). On October 30, 2009, after
the parents admitted to the allegations in the CHINS petition, the trial court found the
children to be CHINS and placed them into foster care. Subsequently, on December 4,
2009, the trial court held a dispositional hearing whereby it maintained the children’s
placement in foster care and ordered the parents to complete services and programs.
Specifically, the trial court ordered Father to: (1) participate in a parenting and family
functioning assessment and follow all recommendations; (2) submit to random drug and
alcohol screens as requested with negative results for all substances; (3) participate in
home-based services; and (4) receive individual counseling, among other requirements.
On May 28, 2010, during the course of the CHINS proceedings for the eldest three
children, Mother gave birth to L.W. Mother’s drug screen at the hospital was positive for
opiates, and L.W. exhibited signs of withdrawal. As a result, L.W. was transferred to the
Neonatal Intensive Care Unit at Lutheran’s Children’s Hospital. On June 1, 2010, DCS
filed a petition alleging that L.W. was a CHINS and placed him in foster care upon his
release from the hospital. On July 22, 2010, the trial court conducted a hearing on the
CHINS petition and found L.W. to be a CHINS after Mother and Father admitted to the
allegations. In its dispositional order, the trial court ordered Father to participate in
3
substantially the same services and programs in which it had ordered him to participate
with respect to the CHINS proceedings relating to the elder three children.
Upon his release from incarceration, Father began participating in the programs
and services as ordered by the trial court. He completed a substance abuse assessment at
the Wabash Bowen Center (Bowen Center), a community mental health center. Based on
the results of the assessment, Father was recommended to participate in intensive
outpatient group sessions twice a week. Father never completed the program because he
did not show up for any of the sessions.
Under the terms of the dispositional order, Father was required to submit to
random drug screens. To fulfill this requirement, Father was instructed to call DCS daily
to find out whether he needed to take a drug screen that day. If so, he was required to
timely submit the screen. In the course of two years of CHINS proceedings, Father only
complied with calling in, submitting to drug screens, and testing negative for drugs
during three months: December 2009, July, 2010, and March 2010. During the
remaining months, Father either did not call in or tested positive for drugs, including
heroin, marijuana, alcohol, and opiates. At the termination hearing, Father admitted to
using illegal drugs sporadically throughout the CHINS proceedings up to the first day of
the trial court’s hearing to terminate his parental rights. Father also testified that his drug
use caused him to be frequently tardy for work, which led to his dismissal and subsequent
unemployment. DCS offered Father therapy for substance abuse, but Father did not
participate in the offered therapy.
4
During the CHINS proceedings, Allison Esch (Esch), a rehabilitation service
provider at the Bowen Center, provided Father with home-based services and supervised
visits with the children. Father never completed the home-based services due to missed
appointments. According to Esch, Father did not show a lot of motivation to follow
through with the discussions in the appointments he did attend or to schedule further
appointments. Similarly, Father’s attendance for court-ordered counseling at the Bowen
Center was sporadic. Sometimes he would “hit four sessions in a row and then there
[were] a couple of times where he hit two and then he missed several.” (Transcript p.
87).
In addition, there was a period of time where Father “disappeared” and did not
have any contact or participation in visitation or any other court-ordered services. In
January of 2011, the parents were evicted from their apartment due to their inability to
pay the rent. They were required to contact family case manager, Sara Cole (FCM Cole),
regarding any updates in their address or contact information, but they did not do so.
Instead, FCM Cole did not hear from the parents from January 6, 2011, until the end of
March, when she was able to locate them through relatives. During this period, Father
did not visit the children or participate in any court-ordered services. When FCM Cole
finally talked to Father, he explained that he had felt like the termination had already
occurred and that he had been in “a very dark place” during those three months; he had
been depressed, living in different places, and using drugs. (Tr. p. 54).
5
On March 21, 2011, DCS filed petitions requesting the termination of the parents’
parental rights towards all four minor children. On August 4 and September 13, 2011,
the trial court held an evidentiary hearing. On September 13, Father testified that he was
sober, although he admitted that he had still been using drugs around August 4—the first
day of the hearing. Father also testified that he had separated from Mother, was living
with his father, and was unemployed. At the conclusion of the hearing, the trial court
terminated Mother and Father’s parental rights to the children.
Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Father argues that the trial court erred in terminating his parental rights because
the trial court concluded that the conditions that resulted in the children’s removal from
his custody would not be remedied. In support of his argument, Father claims that he did
not cause the conditions that resulted in the children’s removal—the three older children
were removed from Mother’s custody while Father was incarcerated, and L.W. was
removed as a result of Mother’s use of narcotics during the pregnancy. Thus, according
to Father, he cannot be held responsible for a failure to remedy those conditions.
We recognize that the Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and raise their children. In re
J.S.O., 938 N.E.2d 271, 274 (Ind. Ct. App. 2010). A parent’s interest in the care,
custody, and control of his or her children is arguably one of the oldest of our
fundamental liberty interests. Id. However, the trial court must subordinate the interests
6
of the parents to those of the children when evaluating the circumstances surrounding a
termination of a parent-child relationship. In re J.H., 911 N.E.2d 69, 73 (Ind. Ct. App.
2009), trans. denied. Parental rights may therefore be terminated when the parents are
unable or unwilling to meet their parental responsibilities. Id.In reviewing termination proceedings on appeal, this court must not reweigh the
evidence nor assess the credibility of the witnesses. Id. We consider only the evidence
that supports the trial court’s decision and the reasonable inferences drawn therefrom. Id.Where, as here, the trial court has entered findings of fact and conclusions of law, we
apply a two-tiered standard of review. Id. First, we determine whether the evidence
supports the findings, and second, whether the findings support the conclusions of law.
Id. In deference to the trial court’s position to assess the evidence, we set aside the trial
court’s findings and judgment terminating the parent-child relationship only if they are
clearly erroneous. Id.In order to terminate Father’s parental rights, DCS was required to prove by clear
and convincing evidence:
(B) that one of the following [was] true:
(i) There [was] a reasonable probability that the conditions
that resulted in the child[ren]’s removal or the reasons for
placement outside the home of the parents [would] not be
remedied.
(ii) There [was] a reasonable probability that the continuation
of the parent-child relationship [posed] a threat to the well-
being of the child[ren].
(iii) The child[ren] [had], on two (2) separate occasions, been
adjudicated [] in need of services[.]
(C) that termination [was] in the best interests of the child[ren].
7
Ind. Code § 31-35-2-4(b)(2)(B), -(C). 2 Clear and convincing evidence as a standard of
proof requires the existence of a fact to “be highly probable.” Hardy v. Hardy, 910
N.E.2d 851, 859 (Ind. Ct. App. 2009). It need not reveal that “the continued custody of
the parent[] is wholly inadequate for the children’s very survival.” Bester, 839 N.E.2d at
148 (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind.
1992)). Rather, it is sufficient to show that the children’s emotional and physical
development are threatened by the parent’s custody. Id.In essence, Father argues that the requirements of I.C. § 31-35-2-4(b)(2)(B)(i)
(emphasis added) are disjunctive; a trial court may find that either “[t]here [was] a
reasonable probability that the conditions that resulted in the child’s removal or the
reasons for placement outside the home of the parents [would] not be remedied,” and a
finding of one is independent of a finding of the other. Because the trial court here found
that the conditions that resulted in the children’s removal would not be remedied but did
not find that the reasons for placement outside the home of the parents would not be
remedied, Father asserts that the trial court erred in terminating his parental rights
because he is not at fault for the children’s removal from the home.
First, we note that although it was Mother’s actions that caused DCS to file
petitions to adjudicate the children as CHINS, DCS also cited Father as a reason for the
children’s removal. In the CHINS petition regarding the elder three children, DCS listed
2
I.C. § 31-15-2-4 was amended by 2012 Ind. Legis. Serv. P.L. 48-2012 (S.E.A. 286) (WEST), but the
amendments are not relevant here and do not apply as the termination of Father’s parental rights occurred
prior to the amendments.
8
Father’s incarceration in support of a CHINS finding. In the CHINS petition for L.W.,
DCS noted that Father had tested positive for heroin on May 18, 2010 and May 19, 2010.
In both CHINS hearings, Father admitted to the allegations, and his admissions were
proper bases for the CHINS adjudications.
However, we do agree with the Father that the trial court did not provide sufficient
findings that the cause for the removal of the older three children—Father’s
incarceration—would not be remedied, as Father was released from incarceration shortly
after the start of the CHINS proceedings and has remained free from incarceration since.
Accordingly, we will address Father’s argument that I.C. § 31-35-2-4(b)(2)(B)(i) can be
read in the disjunctive and that the trial court therefore did not conclude that the
conditions that led to the children’s continued removal from Father’s home would not be
remedied. Because this is an issue of first impression, we will rely on statutory
interpretation of I.C. § 31-35-2-4.
The interpretation of a statute is a question of law reserved for the courts. In re
J.Q., 836 N.E.2d 961, 964 (Ind. Ct. App. 2005), reh’g denied. If a statute is
unambiguous, i.e., susceptible to only one meaning, we must give the statute its clear and
plain meaning. In re S.B., 896 N.E.2d 1243, 1247 (Ind. Ct. App. 2008). However, if a
statute is susceptible to multiple interpretations, we must try to ascertain the legislature’s
intent and interpret the statute so as to accomplish that intent. Stewart v. Randolph Cnty.
Office of Family and Children, 804 N.E.2d 1207, 1211 (Ind. Ct. App. 2004), trans.
denied. In ascertaining the legislature’s intent, we consider the phraseology, nature, and
9
design of the statute, and the consequences that flow from the reasonable alternative
interpretations of the statute. In re K.B., 793 N.E.2d 1191, 1197 (Ind. Ct. App. 2003).
We presume that our legislature intended the statutory language to be applied in a logical
manner consistent with the underlying goals and policy of the statute. In re S.B., 896
N.E.2d at 1247.
Pursuant to I.C. § 31-35-2-4(b)(2)(B),
DCS was required to prove by clear and convincing evidence:
(B) that one of the following [was] true:
(i) There [was] a reasonable probability that the conditions
that resulted in the child[ren]’s removal or the reasons for
placement outside the home of the parents [would] not be
remedied.
(ii) There [was] a reasonable probability that the continuation
of the parent-child relationship [posed] a threat to the well-
being of the child[ren].
(iii) The child[ren] [had], on two (2) separate occasions, been
adjudicated [] in need of services[.]
Due to the “or” in § 31-35-2-4(b)(2)(B)(i), Father argues that § 31-35-2-4(b)(2)(B)(i) can
be read as two independent statutory elements. In other words, the trial court may find
that either there was a reasonable probability that the conditions that resulted in the
children’s removal would not be remedied or the reasons for placement outside the home
of the parents would not be remedied, and a finding of one will preclude a finding of the
other absent an independent trial court conclusion. However, our interpretation of the
legislature’s intent in drafting § 31-35-2-4(b)(2)(B) is that a finding that one part of
subsection (i) has been fulfilled is equivalent to a finding that subsection (i) as a whole
has been fulfilled.
10
In support of this interpretation, § 31-35-2-4(b)(2)(B) states that DCS must show
that one of the following is true: subsection (i), subsection (ii), or subsection (iii).
Although subsection (i) has two parts, the legislature does not refer to the two parts
individually as being sufficient to fulfill § 31-35-2-4(b)(2)(B). The legislature refers to
subsection (i) as a complete entity. If the legislature had intended the contents of
subsection (i) to constitute two independent elements, it would have separated § 31-35-2-
4(b)(2)(B) into four separate subsections rather than three. Thus, we conclude that a
finding as to one part of subsection (i) is a finding as to subsection (i) as a whole.
When we apply this interpretation to the facts of the instant case, we cannot agree
with Father’s assertion that the trial court found that the conditions for removal would not
be remedied but did not find that the conditions resulting in the continued placement
outside of the home would not be remedied. Because the trial court’s determination that
the conditions that led to the children’s removal would not be remedied was a conclusion
that subsection (i) as a whole had been met, and the trial court did not need to
independently state that the conditions that led to the children’s continued placement
outside of the home would not be remedied. However, we still must address whether the
trial court’s findings support the conclusion that the conditions that led to the children’s
continued placement outside of the home would not be remedied.
When determining whether there is a reasonable probability that a parent will not
remedy the conditions justifying a child’s removal from the home or continued placement
outside of the home, the trial court must judge a parent’s fitness to care for his or her
11
child at the time of the termination hearing. Rowlett v. Vanderburgh Cnty. Office of
Family and Children, 841 N.E.2d 615, 621 (Ind. Ct. App. 2006). The trial court must
evaluate the parent’s habitual patterns of conduct to determine whether there is a
substantial probability of future neglect or deprivation of the child. C.T. v. Marion Cnty.
Dept. of Child Services, 896 N.E.2d 571, 578 (Ind. Ct. App. 2008), trans. denied. DCS is
not required to rule out all possibilities of change; rather, it need only establish “that there
is a reasonable probability that the parent’s behavior will not change.” Id. (quoting In re
Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007)).
Here, the trial court found that:
Throughout these proceedings, Mother and Father have had a rocky
relationship, however, for the most part, they remained together. They are
or at least as of the August 4, 2011, hearing, were living in separate
residences on the same street in Wabash. The future of their relationship is
uncertain though Father has testified that he does not intend to get back
together with Mother. The [c]ourt does not believe they will not get back
together.
Both Mother and Father have substance abuse issues. Since the children
were removed, each has tested positive, on numerous occasions, for a
myriad of different substances including: Heroin, Methamphetamine,
Hydrocodone, Methadone, and Marijuana. The record is replete with failed
drug tests, missed appointments and failures to follow through with
services ordered. Father further admitted to continued use of marijuana
after the August 4, 2011, TPR hearing. He reports he is now clean, on his
own, but acknowledges his addictions. While he has been repeatedly
offered substance abuse services by the DCS, he has not followed through
and is not participating in any. His “sobriety” is tenuous at best,
particularly without any formal assistance and while he says he is now
receptive to such assistance, his history indicates otherwise.
During the course of the CHINS proceedings, monthly progress reports
were prepared either by DCS and/or service providers. Those monthly
reports documented substantial non-compliance by both parents throughout
12
these proceedings. . . . Father, upon his release from jail, was likewise
fairly compliant. Beginning in the latter part of 2010 and the early part of
2011, neither of the parties participated in any services. Father described
this period as a dark time in his life. Drug use continued and the parties’
instability escalated. Fortunately, during this “dark time” when Mother and
Father again resorted to behaviors that led to the removal of their children,
the children were safely in foster care.
While Father expresses his desire for one more chance, he has not availed
himself of the numerous chances previously offered. Simply stated, his
testimony that he now gets it and wants to take advantage of all services is
too little too late. Father is not engaged in services, he does not have a
home of his own, and he remains unemployed.
Tellingly, at a review hearing for the three (3) oldest children on or about
August 15, 2011, neither Mother [n]or Father attended that hearing, though
they were provided with notice.
(Appellant’s App. pp. 8-9). Father disputes the trial court’s finding that he and Mother
may get back together, but we conclude that the trial court had sufficient findings to
support its conclusion even if we do not consider that finding. Father consistently failed
to take advantage of services provided and ordered by the trial court and consistently
failed to stay clean of drugs. Although Father testified that he has not used drugs in a
month, this sobriety is, as the trial court stated, “tenuous” in light of his history.
(Appellant’s App. p. 9). Accordingly, we determine that the trial court’s findings
supported its conclusion that the conditions causing the children’s continued removal
from Father’s home will not be remedied. As Father does not dispute any of the trial
court’s other conclusions of law, we also find that the trial court did not err in terminating
Father’s parental rights to his four minor children.
CONCLUSION
13
Based on the foregoing, we conclude that the trial court properly terminated
Father’s parental rights to his four minor children.
Affirmed.
NAJAM, J. and DARDEN, J. concur
14