In Re the Termination of the Parent-Child Relationship of: K.C.C. and K.M.C. (Minor Children) and V.P. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 18 2017, 9:33 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Ann Johnson Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana David E. Corey
Danielle L. Gregory Robert J. Henke
Indianapolis, Indiana Deputy Attorneys General
Indianapolis, Indiana
Ryan K. Gardner
Child Advocates, Inc.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Termination of the October 18, 2017
Parent-Child Relationship of: Court of Appeals Case No.
49A02-1705-JT-979
K.C.C. and K.M.C. (Minor
Children) and Appeal from the Marion Superior
Court
V.P. (Father),
The Honorable Marilyn Moores,
Appellant-Respondent, Judge
v. The Honorable Larry Bradley,
Magistrate
Trial Court Cause No.
The Indiana Department of
49D09-1606-JT-726 & 49D09-
Child Services, 1606-JT-727
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Appellee-Petitioner.
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Respondent, V.P. (Father), appeals the trial court’s Order
terminating his parental rights to his two minor children.
[2] We affirm.
ISSUE
[3] Father raises one issue on appeal, which we restate as follows: Whether the
Indiana Department of Child Services (DCS) presented clear and convincing
evidence to support the termination of his parental rights.
FACTS AND PROCEDURAL HISTORY
[4] Father is the alleged biological father of K.C.C., born June 22, 2011, and
K.M.C., born February 4, 2013 (collectively, the Children). B.C. (Mother) is
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the biological mother of the Children. 1 It is unclear to what extent, if any,
Father was involved in the first few years of K.C.C.’s life. The record indicates
that Father had no relationship with K.M.C. following her birth.
[5] In February of 2013, the Marion County office of DCS became involved with
the family after testing revealed that K.M.C. was born with controlled
substances in her system. At the time, Father’s whereabouts were unknown.
The Children were removed from Mother’s care, placed in foster care, and
adjudicated as Children in Need of Services (CHINS). Over the next year,
Mother completed substance abuse treatment and provided negative drug
screens, while the record indicates that Father never appeared before the court
and remained entirely uninvolved in the DCS case and the Children’s lives. In
July of 2014, the case was closed and the Children were returned home to
Mother.
[6] Within eight months of having the Children returned to her care, Mother had
resumed her struggle with substance abuse—specifically, an addiction to
methamphetamine and heroin. At the time, Mother and the Children were
living with Mother’s parents in Indianapolis, Marion County, Indiana, and it
was reported that Mother’s ability to maintain sobriety was hindered by the fact
that her mother was addicted to opiates and her father was an alcoholic. DCS
again became involved and, as before, Father was not available to care for the
1
Mother’s parental rights to the Children were terminated on April 17, 2017. Mother does not participate in
this appeal.
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Children. Thus, DCS removed the Children and placed them with the same
foster parents who had cared for them in the prior CHINS case. The Children
have done “amazing” in their placement, and the foster parents intend to adopt
them. (Tr. Vol. II, p. 50).
[7] On March 5, 2015, DCS filed a petition alleging the Children to be CHINS.
DCS asserted that the Children’s “physical or mental condition[s] [are]
seriously impaired or seriously endangered as a result of the inability, refusal, or
neglect of the [Children’s] [parents] . . . to supply the [Children] with necessary
food, clothing, shelter, medical care, education, or supervision.” (DCS Exh.
22). After receiving DCS’ petition, the trial court appointed a guardian ad litem
to represent the interests of the Children.
[8] The next day, the trial court conducted an initial and detention hearing. Father
did not appear. Although the trial court approved the Children’s detainment as
being necessary for their protection, the trial continued the initial hearing until
March 24, 2015. At that time, Father appeared and requested to be appointed
counsel. Father reported that he was unemployed and living with a friend.
Father also denied being the Children’s biological parent and gave no
indication that he wanted the Children in his care. Nevertheless, he spoke with
DCS and agreed that he would participate in reunification services. The trial
court ordered a DNA test, but Father never completed the testing to establish
his paternity.
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[9] On June 16, 2015, the trial court conducted a fact-finding hearing on DCS’
CHINS petition. Father did not appear, and his attorney indicated that she had
been unable to contact him. Nevertheless, Mother admitted to the allegations
contained in the CHINS petition, and the trial court adjudicated the Children to
be CHINS. On July 14, 2015, the trial court held a dispositional hearing (at
which Father did not appear) and issued a dispositional order. The trial court
granted wardship of the Children to DCS and directed the parents to comply
with case plans in order to reunite with the Children. The trial court
simultaneously issued a Parental Participation Order, specifically requiring
Father and Mother to participate in services as recommended by DCS. As to
Father, the trial court ordered that he engage in a home-based therapy program
and home-based case management program as referred by DCS.
[10] For the ten months following his appearance at the March 24, 2015 continued
initial hearing, Father’s whereabouts were unknown. He made no effort to
communicate with DCS or otherwise engage in his court-ordered case plan, and
DCS’ attempts to contact him were unsuccessful. Similarly, Father’s attorney
withdrew based on Father’s refusal to communicate. On January 5, 2016,
Father appeared in court for the first time since his initial hearing, and the trial
court appointed new representation. DCS subsequently referred Father for
home-based case management and arranged for Father to have supervised visits
with the Children.
[11] Father maintained full-time employment. However, at some point, he moved
into the home shared by Mother and her parents. Given the ongoing substance
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abuse in Mother’s family home, Father was informed that he needed to obtain
suitable independent housing. Father’s home-based case manager offered to
help Father search for housing and with the application process and also
provided information on available apartments. Although Father indicated that
he would search on his own or contact his service provider to arrange a time
when they could look together, Father never did so. He stated that he was
considering moving in with his father, but Father “never . . . made any
movement on it.” (Tr. Vol. II, p. 138).
[12] Father participated in visitation with the Children once per week. The Children
were initially “reluctant to engage with” Father during the visits, but as visits
progressed, “[i]t got a little better.” (Tr. Vol. II, pp. 140, 142). Despite
instructions from his visitation supervisor to prepare for the visits, Father
consistently indicated that he did not “know what to do,” so it was left to the
supervisor to select meeting places as Father did not have appropriate housing
where visits could occur. (Tr. Vol. II, p. 143). Although Father “tried . . . to
engage with the [Children],” he sometimes struggled with paying attention to
both of them. (Tr. Vol. II, p. 147). The visitation supervisor expressed
concerns about Father’s parenting skills to the extent that he did not
demonstrate a willingness to “advocate for [the Children].” (Tr. Vol. II, p.
152). Furthermore, Father cancelled or failed to show up for at least five visits.
The service provider’s policy was to terminate services following three missed
visits; thus, Father’s visitation with the Children was terminated in the summer
of 2016. Thereafter, he ceased communicating with DCS.
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[13] On June 16, 2016, DCS filed a petition to terminate the parental rights of
Father and Mother. On March 2, 2017, and March 27, 2017, the trial court
conducted a hearing on DCS’ termination petition. During the hearing, DCS
and the Children’s guardian ad litem advocated for the termination of the
parents’ rights to the Children. In turn, the parents sought additional time to be
able to participate in reunification services and establish their fitness to care for
the Children. On April 17, 2017, the trial court issued its Order, terminating
the parental rights of Father and Mother. The trial court determined, in
relevant part, that there is a reasonable probability that the conditions resulting
in the removal and continued placement of the Children outside the home will
not be remedied, that there is a reasonable probability that the continuation of
the parent-child relationship poses a threat to the Children’s well-being, and
that termination of the parent-child relationship is in the best interests of the
Children.
[14] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[15] Father appeals the trial court’s termination of his parental rights. “A parent’s
interest in the care, custody, and control of his or her children is ‘perhaps the
oldest of the fundamental liberty interests.’” In re G.Y., 904 N.E.2d 1257, 1259
(Ind. 2009) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). In fact, the
Fourteenth Amendment to the United States Constitution protects “the
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traditional right of parents to establish a home and raise their children.” Id.
Yet, “parental rights are not absolute and must be subordinated to the child’s
interests when determining the proper disposition of a petition to terminate
parental rights.” S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1122 (Ind.
Ct. App. 2013) (internal quotation marks omitted) (quoting In re I.A., 934
N.E.2d 1127, 1132 (Ind. 2010)). Our courts have determined that termination
of parental rights is appropriate if “parents are unable or unwilling to meet their
parental responsibilities.” In re G.Y., 904 N.E.2d at 1259-60. 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)
(internal quotation marks omitted).
[16] When reviewing a trial court’s termination order, our court does not reweigh
evidence or assess witness credibility. In re G.Y., 904 N.E.2d at 1260. We
“consider only the evidence and reasonable inferences that are most favorable
to the judgment.” Id. Also, the trial court issued specific findings of fact and
conclusions thereon, which requires application of the two-tiered standard of
review set forth in Indiana Trial Rule 52(A): “[f]irst, we determine whether the
evidence supports the findings, and second we determine whether the findings
support the judgment.” Id. We “shall not set aside the findings or judgment
unless clearly erroneous, and due regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). A
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trial court has clearly erred “if the findings do not support the trial court’s
conclusions or the conclusions do not support the judgment.” In re G.Y., 904
N.E.2d at 1260 (quoting Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 147 (Ind. 2005)).
II. Termination of Parental Rights
[17] To support the termination of a parent’s rights, DCS must prove, in relevant
part, that a child has been removed from the home for a certain period, and
(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.
Ind. Code § 31-35-2-4(b)(2). DCS is required to establish each element by clear
and convincing evidence. In re G.Y., 904 N.E.2d at 1260.
[18] On appeal, Father concedes that the Children have been removed from the
parents’ care for the requisite time and that DCS has established a satisfactory
plan for the Children’s care and treatment. Thus, he challenges the trial court’s
conclusions regarding the existence of a reasonable probability either that the
conditions resulting in the Children’s removal and continued placement outside
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the home will not be remedied or that the continuation of the parent-child
relationship poses a threat to the Children’s well-being 2 and that termination is
in the Children’s best interests. We address each argument in turn.
A. Remediation of Conditions
[19] Father claims that there is insufficient evidence to support the trial court’s
conclusion that there is a reasonable probability that the conditions resulting in
the Children’s removal and continued placement outside the home will not be
remedied. In determining whether there is a reasonable probability that
conditions will not be remedied, we must identify what conditions led to the
Children’s “placement and retention” outside of the home and subsequently
determine whether there is a reasonable probability that those conditions will
not be remedied. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1231
(Ind. 2013). DCS “is not required to provide evidence ruling out all possibilities
of change; rather, it need only establish that there is a reasonable probability
that the parent’s behavior will not change.” A.D.S. v. Ind. Dep’t of Child Servs.,
2
Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; thus, DCS need only prove one of the
three elements listed. See In re A.K., 924 N.E.2d 212, 220-21 (Ind. Ct. App. 2010), trans. dismissed. In this
case, DCS alleged, and the evidence supports, that the Children have now twice been adjudicated CHINS.
While this alone would satisfy DCS’ burden under Indiana Code section 31-35-2-4(b)(2)(B), we recognize
that the trial court did not rely on Indiana Code section 31-35-2-4(b)(2)(B)(iii) in ordering the termination of
Father’s rights. Instead, the trial court analyzed whether DCS established the existence of a reasonable
probability either that the conditions resulting in the Children’s removal or continued placement outside the
home will not be remedied or that the continuation of the parent-child relationship poses a threat to the
Children’s well-being. Thus, we will review the same.
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987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013) (internal quotation marks omitted),
trans. denied.
[20] “[T]he trial court should judge a parent’s fitness to care for his or her children at
the time of the termination hearing, taking into consideration evidence of
changed conditions.” A.F. v. Marion Cnty. Office of Family & Children, 762
N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The trial court must
further “balanc[e] 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) (second alteration in
original) (quoting K.T.K., 989 N.E.2d at 1231). “Habitual conduct may include
‘criminal history, drug and alcohol abuse, history of neglect, failure to provide
support, and lack of adequate housing and employment.’” K.E., 39 N.E.3d at
647. The trial court is vested with “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 at 643. Although a trial court must “give due regard to changed
conditions,” it is “not preclude[d] . . . from finding that parents’ past behavior is
the best predictor of their future behavior.” Id.
[21] Here, the Children were removed from the home due to Mother’s substance
abuse in conjunction with the fact that Father was unavailable to care for them.
Thereafter, the Children remained in foster care due to Mother’s inability to
achieve sobriety and Father’s inability to provide the Children with a safe and
stable living environment, along with Father’s lack of consistent participation in
this case. The trial court found that Father “has demonstrated he is not willing
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to be a full time parent by failing to follow through to obtain appropriate
housing, to consistently visit the [C]hildren, or even take the first step of
establishing paternity.” (Appellant’s App. Vol. II, p. 34). Despite his gainful
employment, Father “made no progress in obtaining an appropriate home and
remains living with the [C]hildren’s [M]other and her parents.” (Appellant’s
App. Vol. II, p. 34). In addition, Father engaged in once-per-week visitation
with the Children for a few months in 2016 before his services were terminated
“due to [Father] exceeding his allotment of cancellation of, or no-showing at,
visits.” (Appellant’s App. Vol. II, p. 34).
[22] According to Father, DCS “failed to provide the services to assist Father with
his housing situation and then failed to make sure the appropriate services were
being offered to assist Father with his housing situation.” (Appellant’s Br. p.
18).
Father did not have the ability to obtain housing on his own.
The provider responsible for assisting Father with his housing
was also responsible for supervising his visitation; however, she
made no efforts to assist Father with his housing beyond asking
him how his search was progressing while she supervised his
visits. Father wasn’t even aware the provider was supposed to
assist him with his search. Father was open to finding new
housing. There was no evidence that Father refused any
assistance offered by his providers; however, by the time of the
termination trial, Father was still living with Mother.
(Appellant’s Br. p. 18). Father points out that he maintained employment
throughout the case and never tested positive for drugs. Thus, he insists that if
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DCS had “provided the appropriate assistance, the reasons for the [C]hildren’s
removal would have been remedied.” (Appellant’s Br. p. 18).
[23] It is well established that “the law concerning termination of parental rights
does not require [DCS] to offer services to the parent to correct the deficiencies
in childcare.” In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000). “Rather,
while a participation plan serves as a useful tool in assisting parents in meeting
their obligations, and while county departments of public welfare routinely offer
services to assist parents in regaining custody of their children, termination of
parental rights may occur independently of them, as long as the elements of
[Indiana Code section 31-35-2-4] are proven by clear and convincing evidence.”
Id. “[A] parent may not sit idly by without asserting a need or desire for
services and then successfully argue that he was denied services to assist him
with his parenting.” Id.
[24] The evidence clearly establishes that Father failed to remedy the conditions
resulting in the Children’s removal and continued placement outside the home,
despite ample time and opportunity to do so. Moreover, the blame for Father’s
inability to provide the Children with a safe and stable home rests squarely on
his own shoulders. Father’s nonchalant attitude toward reunification was
evident throughout the case. Following the Children’s removal, he appeared at
one hearing and then—for nearly a year—failed to attend any court
proceedings, made no effort to see the Children, avoided all communication
attempts by DCS and made no contact of his own, did nothing to participate in
his court-ordered services, and declined to communicate with his attorney. See
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A.F., 762 N.E.2d at 1252 (noting that a parent’s failure to appear for services
and court hearings “reflects ambivalence” and “an unwillingness to change
existing conditions”). When Father eventually appeared and indicated that he
would participate in the case, mere months before DCS filed its termination
petition, he declined to take even the minimum steps necessary for
reunification: he never followed through with establishing paternity, he missed
an unacceptable number of visits with the Children, and he failed to find
appropriate housing.
[25] There is nothing in the record that would support Father’s argument that he
was unable to obtain housing on his own. The supervisor of his home-based
service provider did indicate that Father “didn’t have any ability [to look for
something else] right then,” but offered no further explanation. (Tr. Vol. II, p.
119). In fact, the evidence establishes that Father was gainfully employed on a
full-time basis, and the home-based case manager who worked directly with
Father noted nothing that would have prevented him from searching for
housing. She testified that Father understood the requirement that he obtain
housing separate from Mother in order to reunify with the Children, and he
informed her “that he was looking” and “at one point that he was thinking
about moving [in] with his dad.” (Tr. Vol. II, p. 138). Furthermore, Father’s
argument completely ignores the testimony of his home-based case manager
that she offered to assist Father with searching and applying for housing and
that she provided suggestions on specific locations to consider, but Father never
availed himself of her services. It was within the discretion of the trial court to
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credit the testimony of the home-based case manager over Father’s claims that
he received no assistance in his housing search. See In re E.M., 4 N.E.3d at 642
(noting that “weighing the evidence . . . is the trial court’s prerogative”).
[26] The fact that Father refused to expend even a nominal amount of effort to
search for appropriate housing is highly indicative of his lack of desire to
provide for the needs of two young Children. Father appears to believe that it
was DCS’ responsibility to take him by the hand in ensuring compliance with
his case plan, but DCS and the service providers cannot be expected to force
parental engagement. It is the parent’s obligation to ensure that his or her
child’s needs are met, and in this case, Father demonstrated his unwillingness
to do so. Accordingly, we find that DCS presented ample evidence to support
the trial court’s determination that there is a reasonable probability that the
conditions resulting in the Children’s removal and continued placement out of
the home will not be remedied. 3
B. Best Interests of the Children
[27] Father also claims that the trial court’s conclusion that termination is in the best
interests of the Children is unsupported by the evidence. The purpose of
terminating a parent-child relationship is to protect the child, not to punish the
parent. In re C.C., 788 N.E.2d 847, 855 (Ind. Ct. App. 2003), trans. denied.
3
As there is sufficient evidence of a reasonable probability that conditions will not be remedied, we need not
address the alternative element of Indiana Code section 31-35-2-4(b)(2)(B) regarding whether the
continuation of the parent-child relationship poses a threat to the Child’s well-being. See In re A.K., 924
N.E.2d at 220-21.
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While “[c]lear and convincing evidence need not reveal that the continued
custody of the parent . . . is wholly inadequate for the child’s very survival[,] . . .
it is sufficient to show . . . that the child’s emotional and physical development
are threatened by the respondent parent’s custody.” K.T.K., 989 N.E.2d at
1234-35 (first and fourth alterations in original) (quoting Bester, 839 N.E.2d at
148). For this element, the trial court must “look beyond the factors identified
by [DCS] and . . . look to the totality of the evidence.” A.D.S., 987 N.E.2d at
1158. “The trial court 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.” K.T.K., 989 N.E.2d
at 1235. It is well settled that “[p]ermanency is a central consideration in
determining the [child’s] best interests.” Id. (alterations in original) (quoting In
re G.Y., 904 N.E.2d at 1265).
[28] The trial court found that termination is in the Children’s best interests because
the Children could then “be adopted into a stable and permanent home where
their needs will be safely met.” (Appellant’s App. Vol. II, p. 34). “The
[C]hildren have been observed to be highly bonded with their caregivers, and as
having an organic relationship with them.” (Appellant’s App. Vol. II, p. 34).
Father, however, argues that
he has demonstrated a willingness to provide [permanency in a
stable environment]. Had he been provided the assistance to
obtain housing, he would have shown his ability to provide the
permanent and the stable environment the [C]hildren require.
There was no evidence Father’s behavior or his residence was
inappropriate, but for Mother and her mother residing in the
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home. There was no evidence Father had a criminal history
which threatened the well-being of the [C]hildren.[ 4] Father[’s]
blood relationship with the [C]hildren, his desire and willingness
to parent them, give him a superior right that should not be
revoked.
(Appellant’s Br. pp. 19-20).
[29] The record in this case demonstrates that Father has never acted in the best
interests of the Children. From the time the Children were born, it appears that
Father had little-to-no involvement in their lives. Throughout the entirety of
the first CHINS case, Father’s whereabouts were unknown, and he was absent
for a large portion of the instant case. Father never established his paternity,
and during the handful of times that he visited the Children, he was unprepared
and unable to see to the needs of both K.C.C. and K.M.C. Most significantly,
even though he was employed, Father failed to prioritize the Children’s need
for a safe and stable home by continuing to reside in Mother’s home with
ongoing substance abuse.
[30] Moreover, it is well established that “the recommendation by both the [DCS]
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
4
Father’s argument should not be construed as indicating that he does not have a criminal record. The State
presented evidence that Father was convicted of patronizing a prostitute, a Class A misdemeanor, in 2014.
Regardless, the trial court did not rely on Father’s criminal record in terminating his parental rights.
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child’s best interests.” A.D.S., 987 N.E.2d at 1158. Here, DCS testified that
termination was in the Children’s best interests because “[t]he [C]hildren are in
a home where they’re comfortable with parents who they have grown a strong
attachment to and plus the living arrangements for both parents are not a good
living arrangement[] for the [C]hildren to be returned home to.” (Tr. Vol. II,
pp. 48-49). The Children’s guardian ad litem agreed, stating that the Children
“are doing exceptionally well” in their foster home, and “the parents have had
ample time. There have been multiple different opportunities for the services to
take hold.” (Tr. Vol. II, p. 186). Therefore, we find that DCS presented
sufficient evidence to support the trial court’s conclusion that termination of
Father’s parental rights is in the Children’s best interests.
CONCLUSION
[31] Based on the foregoing, we conclude that DCS presented clear and convincing
evidence to support the trial court’s termination of Father’s parental rights.
[32] Affirmed.
[33] Robb, J. and Pyle, J. concur
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