Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
Mar 21 2014, 10:26 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES T. KNIGHT GREGORY F. ZOELLER
HILLIS, HILLIS, ROZZI & KNIGHT Attorney General of Indiana
Logansport, Indiana
ROBERT J. HENKE
DAVID E. COREY
Deputies Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
J.W.K, R.K., J.N.K., B.K., AND J.K. )
Minor Children, )
)
and )
)
S.K., Mother, )
)
Appellants-Respondents, )
)
vs. ) No. 75A05-1307-JT-368
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Plaintiff. )
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable Kim Hall, Judge
Cause Nos. 75C01-1304-JT-4, 75C01-1304-JT-5, 75C01-1304-JT-6, 75C01-1304-JT-7,
75C01-1304-JT-8
March 21, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
S.K. (Mother) appeals the termination of her parental rights to J.W.K., born October
11, 2000; R.K., born March 6, 2002; J.N.K., born June 10, 2003; B.K., born July 30, 2004;
and J.K., born April 25, 2006 (collectively, Children). She argues the Department of Child
Services (DCS) did not present sufficient evidence the conditions under which Children were
removed would not be remedied or that termination was in the best interests of Children. We
affirm.
FACTS AND PROCEDURAL HISTORY
Mother and A.K. (Father)1 are the parents of Children. On October 3, 2011, DCS
received a report that the family home was unsafe due to excessive clutter and drug use.
Mother was uncooperative with DCS, so DCS obtained a court order to enter the residence.
DCS and law enforcement discovered extreme clutter throughout the entire house, no
working utilities, black mold on the back wall of the porch, an unstable back porch, falling
ceiling, hanging wires, and a non-working refrigerator containing insects that were feeding
on the rotten food therein. At the time, Mother indicated she and Children were living with
Mother’s adult child.
On October 21, Mother told DCS she and Children had to move back into the family
home. DCS and the Health Department attempted to work with Mother for a month to
remedy the conditions found in the family home on October 3. Mother made very little
progress, and on November 22, the Fire Chief inspected the home and concluded it was
unsafe for Mother and Children to live there. DCS removed Children from Mother’s care the
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Father voluntarily relinquished his parental rights to Children and does not participate in this appeal.
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same day.
On December 14, the trial court adjudicated Children as Children in Need of Services
(CHINS) upon admission of both parents. On January 10, 2012, the trial court entered a
dispositional order placing Children outside of Mother’s care and ordered Mother to, among
other things, attend all appointments and cooperate with the home-based therapist and home
case manager; work with DCS and the treatment team to make the required improvements to
the home and to eliminate unnecessary clutter in the home; work with service providers to
clean the home and maintain that progress; work with a therapist to identify and avoid
triggers that resulted in the unsatisfactory condition of the home; and obtain and maintain a
means of financial support for Children. On April 15, 2013, DCS filed a petition to terminate
Mother’s parental rights to Children because she had not progressed in services and had
ceased visiting Children in September 2012.
The trial court held evidentiary hearings on the termination petition on June 25 and
26, 2013. DCS presented evidence Mother had removed some of the clutter from the house
and made some of the required repairs, but was resistant to making changes and the home
was starting to get cluttered again; Mother did not follow through with mental health
treatment recommendations, which were the root of her issues with the condition of the
home; Mother did not have a stable income; and Mother failed to visit Children after
September 2012 and missed several visits before that time. The trial court entered an order
terminating Mother’s parental rights to Children on July 22.
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DISCUSSION AND DECISION
We review termination of parental rights with great deference. In re K.S., D.S., &
B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
credibility of 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 juvenile court’s unique position to assess the evidence, we
will set aside a judgment terminating a parent’s rights only if it is clearly erroneous. In re
L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied, 534
U.S. 1161 (2002).
When, as here, a judgment contains 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). We determine first whether the evidence supports the
findings and second 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). If the evidence and
inferences support the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at
208.
“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. A juvenile court must subordinate the
interests of the parents to those of the child, however, when evaluating the circumstances
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surrounding a termination. In re K.S., 750 N.E.2d at 837. The right to raise one’s own child
should not be terminated solely because there is a better home available for the child, id., but
parental rights may be terminated when a parent is unable or unwilling to meet his or her
parental responsibilities. Id. at 836.
To terminate a parent-child relationship, the State must allege and prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six
(6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification are
not required, including a description of the court’s finding, the
date of the finding, and the manner in which the finding was
made.
(iii) The child has been removed from the parent and has been
under the supervision of a county office of family and children
or probation department for at least fifteen (15) months of the
most recent twenty-two (22) months, beginning with the date the
child is removed from the home as a result of the child being
alleged to be a child in need of services or a delinquent child;
(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). The State must provide clear and convincing proof of these
allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied. If the court
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finds the allegations in the petition are true, it must terminate the parent-child relationship.
Ind. Code § 31-35-2-8. Mother argues DCS did not present sufficient evidence to prove the
conditions under which Children were removed would not be remedied, pursuant to Ind.
Code § 31-35-2-4(b)(2)(B)(i), or that termination was in the best interests of Children
pursuant to Ind. Code § 31-35-2(b)(2)(C). We address each argument in turn.
a. Ind. Code § 31-35-2(b)(2)(B)(i)
A trial court may not terminate a parent’s rights unless the State demonstrates by clear
and convincing evidence “there is a reasonable probability that: (i) the conditions that
resulted in the child’s removal or the reasons for placement outside the home of the parents
will not be remedied; or (ii) the continuation of the parent-child relationship poses a threat to
the well-being of the child.” Ind. Code § 31-35-2-4(b)(2)(B); see also In re W.B., 772
N.E.2d 522, 529 (Ind. Ct. App. 2002) (noting State’s burden of proof). Because the statute
was written in the disjunctive, the State needs to prove only one. In re J.W., 779 N.E.2d
954, 962 (Ind. Ct. App. 2002), trans. denied sub nom. Weldishofer v. Dearborn Cnty. Div. of
Family & Children, 792 N.E.2d 40 (Ind. 2003). Therefore, when the evidence supports one
of the trial court’s conclusions, we need not determine whether the evidence supports the
remaining portions of the statute. Id.Mother challenges only whether the evidence supports the findings the court used to
support its conclusion that the conditions resulting in removal of Children will not be
remedied. However, the court also concluded the continuation of the parent-child
relationship poses a threat to the well-being of Children, and the court entered a number of
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independent findings to support that conclusion. Mother has not challenged that conclusion
or any of the findings that support that conclusion. Because the unchallenged findings
support the unchallenged conclusion, which supports the termination of Mother’s parental
rights, we need not review Mother’s allegations regarding the superfluous findings and
conclusion\. See T.B. v. Indiana Dept. of Child Services, 971 N.E.2d 104, 110 (Ind. Ct. App.
2012) (when unchallenged findings support termination, there is no error), trans. denied.
b. Ind. Code § 31-35-2(b)(2)(C)
Pursuant to Ind. Code § 31-35-2-4(b)(1)(C), DCS needed to provide sufficient
evidence “that termination is in the best interests of the child.” In determining what is in the
best interests of a child, the trial court is required to look beyond the factors identified by
DCS and to consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.
App. 2009). In so doing, the trial court must subordinate the interests of the parent to those
of the child. Id. The court need not wait until a child is harmed irreversibly before
terminating the parent-child relationship. Id. Recommendations of the case manager and
court-appointed advocate, in addition to evidence the conditions resulting in removal will not
be remedied, are sufficient to show by clear and convincing evidence that termination is in
the child’s best interests. Id.Regarding Children’s best interests, the trial court concluded:2
Termination of parental rights is in the best interest of the child. Both the
Family Case Manager and the CASA testified that the child has been adversely
2
The trial court entered separate orders with identical language for each child, with the exception of the
identifying information for the specific child. Therefore, we quote from the order regarding the oldest child,
J.W.K.
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impacted by the mother’s inability to provide a safe and stable home. Further,
the child has been adversely affected by the lack of permanency. The child is
in need of a permanent placement with the child’s siblings in a safe, stable, and
loving environment. The Court finds there is clear and convincing evidence
that it would be contrary to the best interests of the child to be required to
continue to wait in a temporary, impermanent situation for the mother to
overcome the problems that have kept her from providing the child with a safe,
stable, and permanent home.
(App. at 17.) To support that conclusion, the trial court found Children had been removed
from Mother’s care for almost two years, Mother refused treatment for mental illness, and
Mother was resistant to outside intervention and help with cleaning and repairing her house,
which was the reason Children were removed from her care. Mother’s arguments to the
contrary are invitations for us to reweigh the evidence, which we cannot do. See In re D.D.,
804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge credibility of
witnesses).
CONCLUSION
As Mother does not challenge, and there was sufficient evidence to support the trial
court’s determination that the continuance of the parent-children relationship posed a threat
to the well-being of Children, we need not consider Mother’s argument regarding the
sufficiency of the evidence presented to prove the conditions under which Children were
removed from Mother’s home would not be remedied. Additionally, DCS provided
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sufficient evidence to prove termination of Mother’s parental rights was in the best interest of
Children. Accordingly, we affirm.
Affirmed.
VAIDIK, C.J., and RILEY, J., concur.
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