In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.W., B.W., and D.W. (Minor Children), and D.W. (Father) v. Indiana Department of Child Services (mem. dec.) , 121 N.E.3d 134 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 16 2019, 6:12 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
Don R. Hostetler Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary January 16, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of A.W., B.W., and 18A-JT-1488
D.W. (Minor Children), and Appeal from the Marion Superior
D.W. (Father), Court Juvenile Division
Appellant-Respondent, The Honorable Marilyn A.
Moores, Judge
v. The Honorable Gary Chavers,
Judge Pro Tempore
Indiana Department of Child The Honorable Larry Bradley,
Services and Child Advocates, Magistrate
Inc.
Trial Court Cause No.
Appellees-Petitioners 49D09-1708-JT-702, 49D09-1708-
JT-705, 49D09-1708-JT-706
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1488 | January 16, 2019 Page 1 of 17
Altice, Judge.
Case Summary
[1] D.W. (Father) appeals the involuntary termination of his parental rights to his
three children. On appeal, Father argues that the court’s termination order is
not supported by sufficient evidence.
[2] We affirm.
Facts & Procedural History
[3] Father and S.T. (Mother)1 have three children: A.W., born in 2008; D.W.,
born in 2012; and B.W., born in 2014 (collectively, the Children). The
Department of Child Services (DCS) became involved with the family in May
2016 after a police officer observed Father and Mother buying heroin with
D.W. and B.W. in the car. A police officer initiated a traffic stop. The officer
found narcotics in Mother’s bra and determined that Father was driving on a
suspended license. The officer also noted that D.W. was not restrained in a car
seat and was “wearing a sagging urine filled diaper and was shoeless” and that
both children were covered in dirt. Exhibits at 21. Father was arrested as a
result of this incident, and D.W. and B.W. were placed in foster care.
1
Mother’s parental rights were not terminated by the order terminating Father’s parental rights. We will
state the facts as they pertain to the termination of Father’s parental rights.
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[4] On May 17, 2016, DCS filed a verified petition alleging D.W. and B.W. to be
children in need of services (CHINS). On July 11, 2016, DCS filed another
CHINS petition after learning that Father had a third child, A.W., who was
living with Father’s mother. Father failed to appear at the initial hearing on the
CHINS petition relating to A.W., and the juvenile court ordered removal of
A.W. from Father’s care and authorized placement in foster care with paternal
grandmother. On August 10, 2016, the juvenile court entered its order
adjudicating the Children CHINS based on Father’s request for “assistance
maintaining … sobriety” and the allegations in the CHINS petitions. Id. at 32.
[5] At a dispositional hearing held on September 7, 2016, the juvenile court ordered
Father to participate in services to address substance abuse and instability,
including home-based therapy, home-based case management, to submit to a
substance abuse assessment, and to submit to random drug screens. The court
also ordered that A.W. be removed from her parental grandmother’s home due
to safety concerns and placed in foster care.2 Following a May 10, 2017
permanency hearing at which Father did not appear, the juvenile court changed
the permanency plan from reunification to adoption for the Children. DCS
filed petitions for the involuntary termination of Father’s parental rights on
August 8, 2017. On May 17, 2018, the juvenile court held a termination of
parental rights hearing. The court issued its order terminating Father’s parental
2
A.W. was placed in the same home as D.W. and B.W.
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rights to the Children on May 25, 2018. The court made the following findings
in support thereof:
10. Home based therapy was referred to address any underlying
needs, and to help in alleviating substance abuse by learning
coping skills.
11. Therapy would also have addressed how substance abuse
relates in regards to the [C]hildren. [Father] did not strongly
agree that substance abuse affected his parenting.
12. Although therapy was referred at least three times, no
monthly progress reports were received from service providers.
13. Erica Terry worked with [Father] as his home based case
manager between July of 2016 to March of 2017.
14. Ms. Terry helped [Father] with filling out employment
applications and transportation. She also tried to help him
address his heroin addiction.
15. [Father] worked “here and there” at temporary jobs for a
total of one week while Ms. Terry was the case manager.
16. [Father] had unstable housing during this time, living with his
mother, the [C]hildren’s maternal grandmother, and in a hotel,
none which were appropriate for the [C]hildren. At the time of
trial, he was residing with his grandmother in a two-bedroom
residence.
17. Case management was closed due to Ms. Terry not being
able to locate [Father]. She reported no progress had been made
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in addressing issues and felt that additional time would not help.
[Father] did not do things on his own.
18. The major condition to be addressed is [Father]’s substance
abuse which included heroin use before and during the CHINS
cases.
19. [Father] went into a five-day detoxification program in July
of 2016, but failed to follow up on recommendations. He
relapsed and was readmitted to detoxification in August of 2016.
He left after three days and failed to follow up.
20. [Father] may have done another detoxification in the fall of
2017.
21. [Father] did another detoxification program from April 18,
2018 until April 30, 2018. He received a diagnosis at discharge
of Mood Disorder, Psychosis, and Opioid and Alcohol
Dependence.
22. [Father] was to follow up with a mental health intake on May
1, 2018. He failed to do so. Psychiatric medical management
and outpatient drug treatment were pending the May 1, 2018
intake which was not followed up on.
23. Random urine screens were referred in June of 2016. As of
April of 2017, [Father] had submitted to one screen.
24. Home Based Case Manager Terry would transport [Father]
to submit to screens but he would mostly fail to get out of the car.
25. [Father] did screens inconsistently in the fall of 2017 and
early 2018.
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26. On screens taken between December 14, 2017 and February
27, 2018, [Father] tested positive for illegal drugs twelve times.
The drugs differed at times but included methamphetamine,
amphetamine, THC, and Buprenorphine.
27. [Father] has failed to undergo a drug screen since March 2,
2018.
28. [Father] testified he has overcome his addictions, and does
not need drug services.
29. [Father] presented in court with a poor memory and
somewhat scattered thoughts. This, coupled with [Father]
relying on providers and family raise serious concerns about
[Father]’s ability to parent three children.
30. The [C]hildren have been in therapy since September of 2017,
and have progressed to the point that goals of processing trauma
and coping skills have been met.
31. The [C]hildren are together in a preadoptive foster home
where they have been observed as comfortable and have
integrated into the preadoptive family.
32. The Court suspended [Father]’s parenting time on May 10,
2017, when the [C]hildren’s plan for permanency was changed to
adoption, at which time the Court found that neither parent had
made any meaningful or sustainable progress toward
reunification.
33. The Guardian ad Litem and [C]hildren’s therapist never
recommended that parenting time be reinstated. The therapist
was concerned that parenting time would be traumatic for the
[C]hildren and they could regress.
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34. There is a reasonable probability that the conditions that
resulted in the [C]hildren’s removal and continued placement
outside the home will not be remedied by [F]ather who has not
followed up with drug treatment recommendations after
attending detoxification at least three times. He has not
successfully participated in services to overcome housing and
employment instability. The [C]hildren’s CHINS cases have
been open two years and [Father] has not made sustainable
progress during that time.
35. There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the [C]hildren’s well-
being in that it would pose as a barrier to obtaining permanency
for them through an adoption when their [F]ather is unable to
offer permanency and parent in a safe and stable environment, or
meet the [C]hildren’s needs.
36. Based on the length of time the CHINS cases have been
pending, the services offered but not completed, and the question
of whether it would be safe to return the [C]hildren, the
Guardian ad Litem, Jessica Sherman, recommends termination
of parental rights so the [C]hildren can move on with their lives.
Ms. Sherman believes that giving [Father] additional time would
interfere with permanency and create more stress and anxiety for
the [C]hildren.
37. The [DCS] family case manager does not feel that issues
have been remedied, or will be. She also feels that the [C]hildren
have a great familial bond where they reside.
38. The [C]hildren’s therapist believes it would be detrimental if
the [C]hildren were removed from their placement. The
[C]hildren need stability and consistency.
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Appellant’s Appendix Vol. II at 41-2. Father now appeals. Additional facts will
be provided as necessary.
Discussion & Decision
[6] Before we consider Father’s arguments that the evidence was insufficient to
support termination of Father’s parental rights, we first address his claim that
the juvenile court could not rely on the results of his drug tests because DCS
could not establish a reliable chain of custody. Specifically, Father argues that
the chain of custody for his drug tests is unreliable because (1) the collection
technician left specimens unattended in his car, (2) the specimens were left in a
FedEx drop box with no testimony regarding FedEx procedures, and (3) the
laboratory toxicologist did not know who unsealed Father’s samples prior to
testing.
[7] We begin by noting that DCS is not required to establish a perfect chain of
custody. See Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). “To establish a
proper chain of custody, the State must give reasonable assurances that the
evidence remained in an undisturbed condition.” Id. (citing Cliver v. State, 666
N.E.2d 59, 63 (Ind. 1996)). “[O]nce the State ‘strongly suggests’ the exact
whereabouts of the evidence, any gaps go to the weight of the evidence and not
to admissibility.” Id. (quoting Wrinkles v. State, 690 N.E.2d 1156, 1160 (Ind.
1997)). Moreover, there is a presumption of regularity in the handling of
evidence by officers, and there is a presumption that officers exercise due care
in handling their duties. Id. To mount a successful challenge to the chain of
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custody, one must present evidence that does more than raise a mere possibility
that the evidence may have been tampered with. Id.
[8] The collection technician who collected specimens from Father testified that he
would leave specimens in his car while collecting specimens from other
individuals, but that he was the only person who had access to his car, which
was locked at all times. The technician further described the process in which
he collected the samples and his handling of the samples thereafter. The
technician would apply gloves, open a sealed test kit, and label the collection
tubes. The technician would then open the mouth swab and, without touching
the swab itself, direct the donor to pull the swab out and apply it to their mouth
until it turned blue indicating a sufficient sample of saliva had been collected.
The technician would then put the swab in a collection tube and seal it. The
sealed tube would then be put into a bag that was then sealed and placed into a
FedEx bag that was sealed as well. To ship the samples to the laboratory, the
technician would drop the sealed bags at a FedEx drop box. The technician
testified that he followed this procedure for all drug tests and that he had
collected approximately 1800 specimens during his employment with the drug
testing company.
[9] Once the specimens arrived at the laboratory, an employee inspected the
packaging and specimen to ensure that all seals remained intact. If there was
evidence of tampering, such would have been noted on the laboratory report.
Additionally, a forensic toxicologist and custodian of records with the
laboratory testified that there were no notations indicating that Father’s
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specimens were compromised in any way and that the results were accurate.
DCS’s evidence provides reasonable assurances that Father’s mouth swabs were
undisturbed and that the results of the testing were accurate. See Culver v. State,
727 N.E.2d 1062, 1067 (Ind. 2000) (finding that the State established a proper
chain of custody when testimony revealed that blood samples were contained in
a marked and sealed box that was intact when the forensic DNA examiner
tested the evidence).
[10] Father presented no evidence other than to imply a mere possibility that the
samples may have been altered. DCS’s evidence established that Father’s
specimens were handled and stored in such a way that it would be nearly
impossible for someone to conceal the fact that the specimens were mixed up or
had been tampered with. Father’s arguments go to the weight of the evidence,
not its admissibility. The juvenile court properly admitted Father’s drug test
results into evidence.
[11] Having determined that the trial court could rely on the drug test results, we
now turn to Father’s arguments that the evidence was insufficient to support the
involuntary termination of his parental rights. When reviewing the termination
of parental rights, we will not reweigh the evidence or judge the credibility of
the witnesses. 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 most
favorable to the judgment. Id. In deference to the trial court’s unique position
to assess the evidence, we will set aside its judgment terminating a parent-child
relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.
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Ct. App. 1999), trans. denied. Thus, if the evidence and inferences support the
decision, we must affirm. Id.
[12] The trial court entered findings in its order terminating Father’s parental rights.
When the trial court enters specific findings of fact and conclusions thereon, we
apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &
Children, 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). A judgment is clearly erroneous
only if the findings do not support the court’s conclusions or the conclusions do
not support the judgment thereon. Id.
[13] We recognize that the traditional right of parents to “establish a home and raise
their children is protected by the Fourteenth Amendment of the United States
Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.
Although parental rights are of constitutional dimension, the law provides for
the termination of these rights when parents are unable or unwilling to meet
their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.
2008). In addition, a court must subordinate the interests of the parents to those
of the child when evaluating the circumstances surrounding the termination. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating
parental rights is not to punish the parents, but to protect their children. Id.
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[14] Father argues that the evidence was insufficient to support the trial court’s
termination of his parental rights. Before an involuntary termination of
parental rights may occur in Indiana, DCS is required to allege and prove by
clear and convincing evidence, 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[.]
Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing
evidence that termination is in the best interests of the child and that there is a
satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-
4(b)(2)(C), (D).
[15] Father challenges the court’s findings as to subsection (b)(2)(B)(i) and (ii). We
note that DCS was required to establish only one of the requirements of
subsection (b)(2)(B) by clear and convincing evidence before the trial court
could terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct.
App. 2003). Here, the trial court found that DCS presented clear and
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convincing evidence that there is a reasonable probability the conditions
resulting in the Children’s removal or continued placement outside Father’s
care will not be remedied and that continuation of the parent-child relationship
poses a threat to the Children’s well-being. See I.C. § 31-35-2-1(b)(2)(B)(i), (ii).
We focus our inquiry on the requirements of subsection (b)(2)(B)(i)—that is,
whether there was sufficient evidence to establish a reasonable probability that
the conditions resulting in the Children’s removal or continued placement
outside Father’s care will not be remedied.
[16] In making such a determination, the trial court must judge a parent’s fitness to
care for his child(ren) at the time of the termination hearing, taking into
consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512
(Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent’s
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation of the child. Id. In making this
determination, courts may consider 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. A.F. v. Marion Cnty. Office of
Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.
The court may also consider the parent’s response to the services offered
through DCS. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,
372 (Ind. Ct. App. 2007), trans. denied. “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
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reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d
at 210.
[17] Additionally, DCS need not provide evidence ruling out all possibilities of
change; rather, it need establish only that there is a reasonable probability the
parent’s behavior will not change. In re Involuntary Termination of Parent-Child
Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “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.”
In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Although a trial court is required to
give due regard to changed conditions, this does not preclude a finding that a
parent’s past behavior is the best predictor of his or her future behavior. Id.
[18] The Children were removed from Father’s care because of Father’s admitted
drug use and request for help to obtain sobriety. DCS also identified Father’s
instability in housing and employment as reasons for removal of the Children.
Throughout the CHINS proceedings, Father did not participate in a majority of
the referred services for his substance abuse and demonstrated a pattern of
relapsing after receiving treatment. As noted by the court in its order, Father
attended a five-day detoxification program, but failed to follow up or comply
with recommendations upon his release. A short time after his release, Father
was readmitted into a detoxification program, but left after three days and again
failed to comply with recommended services. Father points to his latest effort
of participating in a detoxification program from April 18 until April 30, 2018,
which is nearly two years since the Children were removed from his care and
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about one month before the termination hearing, as evidence that there is a
reasonable probability that the conditions resulting in removal of the Children
will change. Father’s history of drug use and multiple relapses, however, is
more telling of the probability of whether circumstances will change, especially
in light of Father’s minimal participation in other services.
[19] Father also failed to submit to random drug screens. Even when his home-
based case manager provided transportation so Father could submit to a drug
screen, Father would refuse to get out of the car. Of the drug screens Father
submitted, most of which were in late 2017 and early 2018, he tested positive
for illegal drugs (i.e., methamphetamine, amphetamine, THC, and/or
buprenorphine) twelve times. Father did not submit any drug screens after
March 2, 2018.
[20] Father wholly failed to comply with home-based therapy and home-based case
management. Although his case manager made three referrals, Father did not
participate in any services. With regard to employment, Father’s case manager
helped Father apply for jobs, but over the course of nearly two years, Father
worked for a total of one week. With regard to housing, Father lived with
either his mother, Mother’s mother, or in a motel. Father’s case manager
testified that none of these locations were suitable for the Children.
[21] Father made little to no progress in changing the conditions that resulted in
removal of the Children from his care. Father’s recent efforts at trying to
maintain sobriety, obtain employment, and secure a place to live are
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overshadowed by Father’s lack of effort to address these issues in the nearly two
years since the CHINS action was filed. As the court found, Father did not
make any “sustainable progress.” Appellant’s Appendix Vol. II at 42. Father’s
arguments to the contrary are simply requests to reweigh the evidence, which
we will not do on appeal. The evidence was sufficient to support the court’s
determination that there is a reasonable probability that the conditions that
resulted in the removal of the Children will not be remedied.
[22] Father also argues that the evidence was insufficient to support the trial court’s
finding that termination was in the Children’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 beyond the factors identified by DCS and consider the
totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013).
In so doing, the trial court must subordinate the interest of the parent to those of
the child, and the court need not wait until a child is irreversibly harmed before
terminating the parent-child relationship. McBride v. Monroe Cnty. Office of
Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme
Court has explained that “[p]ermanency is a central consideration in
determining the best interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265
(Ind. 2009). “Moreover, we have previously held that the recommendations of
the case manager and court-appointed 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.” In re J.S., 906 N.E.2d at 236.
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[23] Father’s case manager, the Children’s therapist, and the Guardian ad Litem all
testified that the Children need permanency. Service providers also expressed
concern that the Children would regress if the proceedings were permitted to
continue. Each service provider believed that termination was in the best
interests of the Children. We will not second guess the providers in this regard.
[24] In sum, the court could properly rely on the results of Father’s drug screens,
and the evidence was sufficient to support the court’s termination of Father’s
parental rights to the Children.
[25] Judgment affirmed.
Najam, J. and Pyle, J., concur.
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