MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Nov 09 2015, 7:17 am
this Memorandum Decision shall not be
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
Deidre L. Monroe INDIANA DEPARTMENT OF
Lake County Public Defender’s Office CHILD SERVICES
Gary, Indiana Gregory F. Zoeller
Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
ATTORNEY FOR APPELLEE CASA
Donald W. Wruck
Wruck Paupore PC
Dyer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination November 9, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of C.K., Mother, J.E., Father, 45A04-1503-JT-94
and A.K. and E.K., Children, Appeal from the Lake Superior
J.E., Court
The Honorable Thomas P.
Appellant-Respondent,
Stefaniak, Jr., Judge
v.
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Indiana Department of Child Trial Court Cause Nos.
Services, 45D06-1408-JT-196
45D06-1408-JT-198
Appellee-Petitioner,
Lake County Court Appointed
Special Advocate,
Appellee.
Kirsch, Judge.
[1] J.E. (“Father”) appeals the juvenile court’s order terminating his parental rights
to his children, A.K. and E.K. (collectively, “the Children”). He raises the
following restated issue on appeal: whether the statutory elements for
terminating Father’s parental rights were established by clear and convincing
evidence. Specifically, Father contends that the trial court was clearly
erroneous in finding that (1) there is a reasonable probability the conditions that
resulted in the Children’s removal or the reasons for placement outside of the
home will not be remedied; (2) there is a reasonable probability that the
continuation of the parent-child relationship poses a threat to the Children’s
wellbeing; and (3) termination is in the Children’s best interest.
[2] We affirm.
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Facts and Procedural History
[3] On February 22, 2013, E.K. was born at thirty-five weeks gestation weighing
four pounds to C.K. (“Mother”).1 The Department of Child Services (“DCS”)
became involved with E.K. and A.K., E.K.’s then one-year-old sibling,2 that
same day, when the hospital contacted it to report that E.K. was born
prematurely and addicted to drugs. Mother admitted to using methadone,
heroine, and marijuana during her pregnancy. A urine screen returned a
positive result for marijuana and methadone. A Family Case Manager
(“FCM”) from DCS investigated the hospital’s report and learned that E.K.
was in the Neonatal Intensive Care Unit (“NICU”) receiving a morphine drip
to treat the drug withdrawal symptoms. Additionally, other children had been
removed from Mother’s care in the past.
[4] DCS removed the Children without a court order on February 25, 2013 and
initiated Child in Need of Services (“CHINS”) proceedings. On February 26,
2013, DCS filed a CHINS petition based on its investigation, and a detention
hearing was held that same day. The juvenile court subsequently ordered the
Children’s removal, and Mother and Father (collectively “the Parents”) to
participate in provisional services. Father was also ordered to establish
paternity for the Children as he and Mother were never married. On April 29,
1
C.K.’s parental rights were also terminated by the juvenile court, but she does not participate in this appeal. We,
therefore, only recite facts pertaining to her as they relate to Father’s case.
2
Mother and Father each have other children; however, E.K. and A.K. are their only biological children together.
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2013, after a CHINS fact-finding hearing, the juvenile court adjudicated the
Children as CHINS retroactive to February 25, 2013. The Parents were
ordered to participate in services geared towards reunification with the
Children. The required services, which were similar to the provisional services,
included a substance abuse evaluation, a clinical assessment to evaluate the
Parents’ mental health needs, a parenting assessment, ongoing drug screens,
parenting classes, and home-based casework services. Additionally, Father was
ordered to find and maintain suitable housing and employment. Although
Father completed the clinical and substance abuse assessments, he failed to
successfully complete the other required services.
[5] Father failed to attend a review hearing3 on May 12, 2014, and the juvenile
court ordered that all services be stopped due to noncompliance of the Parents.
Additionally, the juvenile court changed the permanency plan from
reunification to termination of parental rights with adoption. On August 14,
2014, DCS filed a petition to terminate the parental rights of Mother and
Father.
[6] During the February 10, 2015 termination hearing, Father was evasive about
his criminal history, but admitted that he had spent time in the Lake County
and the Porter County Jails, that he had failed to successfully complete his
probation and that he had spent time in the work release program.
3
Father also failed to attend review hearings on July 24, 2013 and August 1, 2014.
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[7] Service providers testified that Father did not make himself available for
services on a consistent basis, that he was very inconsistent in his visitations
with the Children, that they had a very difficult time contacting Father to
arrange visits and that he often cancelled or failed to show up at the designated
time and place and eventually stopped attending the visitations altogether.
Father had an overall cancellation rate of eight-five percent.
[8] As for the home-based services, Father only met with the provider five times
over a six-month period. Both Father and Mother struggled with
unemployment and were living in an unsuitable home with “too many
individuals living there.” Tr. at 60. Father’s FCM tried to help him find
suitable housing and employment. Those efforts were unsuccessful, and on
several occasions, Father indicated to the FCM that he did not need the
services. Further, Father acknowledged at the termination hearing that he
knew he needed to complete the services in order to have an opportunity to be
reunited with the Children, but felt that the services were put in place “[f]or
everyone to make money.” Id. at 46. Moreover, it was unclear during the
termination hearing where Father had been living throughout the course of the
case plan.
[9] According to the testimony of the service providers, Father was in denial of his
substance abuse problems and had tested positive for opiates on his drug
screens. Father admitted to having had a problem with alcohol in the past and
failed to comply with the weekly drug screens or participate in the
recommended substance abuse counseling. When Father did submit to drug
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screens, he was inconsistently clean or had abnormal levels of creatinine in his
system. A service provider testified that abnormal levels of creatinine are
common when individuals try to flush out or mask drugs in their system. The
accumulation of these behaviors led the service providers to question Father’s
interest in staying drug free and his commitment to dealing with his other
substance abuse issues for the sake of the Children.
[10] Since the Children were removed by DCS on February 25, 2013, they have not
returned to either of the Parents. The FCM testified that termination of
parental rights is in the best interest of the Children. The Children have made
great strides in their development, and they have bonded with their foster
parents.
[11] On February 11, 2015, the juvenile court issued its order terminating the
parental rights of Father and Mother. Father now appeals.
Discussion and Decision
[12] We begin our review by acknowledging that this court has a highly deferential
standard of review in cases concerning the termination of parental rights. In re
B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When reviewing a
termination of parental rights case, 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 that are most favorable to the judgment. Id. Moreover, in deference
to the trial court’s unique position to assess the evidence, we will set aside the
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court’s judgment terminating a parent-child relationship only if it is clearly
erroneous. In re B.J., 879 N.E.2d at 14.
[13] In the present case, the juvenile court entered specific findings of fact and
conclusions when it terminated Father’s parental rights to the Children. We
apply a two-tiered standard of review when the trial court’s judgment contains
specific findings and conclusions. 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. We will only conclude that the trial court’s findings are
clearly erroneous if “the record contains no facts to support them either directly
or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996).
Accordingly, we must affirm if the evidence and inferences support the trial
court’s decision. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
Ct. App. 2013), trans. denied.
[14] The right of parents to establish a home and raise their children is protected by
the Fourteenth Amendment of the United States Constitution. In re K.T.K., 989
N.E.2d 1225, 1230 (Ind. 2013). “The parent-child relationship is one of our
culture’s most valued relationships.” Id. Parental rights are not absolute and
must be subordinated to the children’s interests when determining the proper
disposition of a petition to terminate parental rights. In re J.C., 994 N.E.2d 278,
283 (Ind. Ct. App. 2013). Moreover, although the right to raise one’s own
children should not be terminated solely because there is a better home for the
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children, parental rights may be terminated when a parent is unable or
unwilling to meet his or her parental responsibilities. Id.
[15] Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, 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 the
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.
(C) that the 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’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In
re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).
Moreover, if the court finds that the allegations in a petition described in section
4 of this chapter are true, the court shall terminate the parent-child relationship.
Ind. Code § 31-35-2-8(a) (emphasis added).
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[16] Father argues that DCS failed to prove the required elements for termination of
parental rights by sufficient evidence. Specifically, he contends that DCS failed
to present clear and convincing evidence that the conditions that resulted in the
removal or the reasons for placement outside of the home would not be
remedied.
[17] In determining whether there is a reasonable probability that the conditions that
led to the children’s removal and continued placement outside the home would
be remedied, the trial court engages in a two-step analysis. In re K.T.K., 989
N.E.2d at 1231. First, it “must ascertain what conditions led to their placement
and retention in foster care.” Id. Second, “it must determine whether there is a
reasonable probability that those conditions will not be remedied.” Id. (citing 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))). The 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.2d 636, 643 (Ind. 2014)
(quoting In re K.T.K., 989 N.E.2d at 1231). “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.” Id. Although trial
courts are required to give due regard to changed conditions, this does not
preclude them from finding that parents’ past behavior is the best predictor of
their future behavior. Id.
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[18] Here, the evidence showed that, in February 2013, the Children were removed
from the Parents due to a report that E.K. was born prematurely and tested
positive for drugs at birth. Mother admitted to using methadone, heroin, and
marijuana during her pregnancy. Mother and Father were together at the time
of the removal, and Father was aware of Mother’s drug use during her
pregnancy. E.K. was in the NICU for some time after his birth due to
complications from being premature and addicted to drugs. A.K. was placed
outside the home with an aunt. The Children were later adjudicated as
CHINS, and the Parents were ordered to not use illegal substances and submit
to drug screens; participate in supervised visitation; complete separate
parenting, clinical, and substance abuse assessments and follow all
recommendations; complete parenting classes; maintain suitable housing and
employment; and participate in case management services. The Children
continued to be placed outside the home for almost two years after they were
removed in February 2013. During that two-year period, extensive services
were offered the Parents to help them reunite with the Children, address their
substance abuse issues, and maintain safe and suitable housing. The trial court
concluded that the services were ineffective due to the Parents’ non-compliance.
[19] Father has a criminal record, had his probation revoked in the past, and was
incarcerated on a probation violation as recently as November 2014. Father
was inconsistent in participating in the court-ordered services, did not show up
for several review hearings and frequently missed his visitations with the
Children. Father attended only five of the weekly home-based service meetings
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over a six-month period. Father repeatedly refused to submit to drug screens or
was unavailable when service providers attempted to contact him. When
Father did consent to the drug screens, he had several positive and abnormal
results indicating that he either had drugs in his system or may have attempted
to flush out his system. He also refused to participate in the recommended
substance abuse counseling.
[20] The juvenile court was presented with evidence that Father was non-compliant
with those providing services, has a pattern of criminal history, missed a
significant amount of visitations with the Children, was aware of Mother’s drug
use during her pregnancy, and showed signs of substance abuse. Based on the
evidence presented, we conclude that the juvenile court did not err in finding
that there was a reasonable probability that the conditions that resulted in the
removal of and the reasons for continued placement of the Children outside the
home will not be remedied.
[21] Father argues that DCS failed to present sufficient evidence that the
continuation of the parent-child relationship poses a threat to the Children.
However, we need not address such argument because Indiana Code section
31-35-2-4(b)(2)(B) provides that the State must allege and prove by clear and
convincing evidence one of the three requirements of subsection (b)(2)(B).
A.D.S., 987 N.E.2d at 1155-56. Having determined that sufficient evidence
supported the juvenile court’s conclusion that the conditions that resulted in the
removal of the Children would not be remedied, we do not address whether
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sufficient evidence supported the conclusion that the continuation of the parent-
child relationship posed a threat to the well-being of the Children.
[22] Father next argues that insufficient evidence was presented to prove that
termination is in the best interests of the Children. In determining what is in
the best interests of the Children, the trial court is required to look at the totality
of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In
re D.D., 804 N.E.2d at 267), trans. dismissed. In doing so, the trial court must
subordinate the interests of the parents to those of the child involved. Id.
Termination of a parent-child relationship is proper when the child’s emotional
and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d 927,
930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the
child is irreversibly harmed such that his or her physical, mental, and social
development is permanently impaired before terminating the parent-child
relationship. Id. The trial court may also consider the services offered as well
as the parents’ response to those services. Id. If the parents are unable or
unwilling to effectively use the services recommended to them to properly care
for their child, it may no longer be in the child’s best interests to maintain the
relationship. In re M.S., 898 N.E.2d 307, 312 (Ind. Ct. App. 2008) (citing Febert
v. Marion Cnty. Office of Family & Children, 743 N.E.2d 766, 776 (Ind. Ct. App.
2001)). Additionally, a child’s need for permanency is an important
consideration in determining the best interests of a child, and the testimony of
the service providers may support a finding that termination is in the child’s
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best interests. In re A.K., 924 N.E.2d at 224 (citing McBride v. Monroe Cnty. Office
of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).
[23] E.K. has never lived with Father, and it is unclear how much time A.K.
actually spent in Father’s care prior to the removal. According to the evidence,
A.K. was cared for by her aunt “off and on since the child was 2 weeks old.”
State’s Ex. J at 3. The Children are still very young and are at very critical
points in their development. A.K. and E.K. have and will continue to struggle
with various problems due to their past which require special attention. To
ensure that they continue to develop, the Children need a safe, stable drug-free
home and environment. “Permanency is a central consideration in determining
the best interests of a child.” In re G.Y., 904 N.E.2d at 1265. Father’s
inconsistencies and lack of commitment to completing the court-ordered
services are indicative of the fact that he is unable to provide the necessary
stability that the Children require and deserve. The evidence showed that the
Children’s needs are being met by their current foster parents, the Aldrins, who
wish to adopt them. Additionally, the FCM testified that adoption by the
Aldrins is in the best interests of the Children because “the home they’re in right
now is safe and stable, and the kids already have fun with the family.” Tr. at
103. Based on the above evidence, we conclude that sufficient evidence was
presented to prove that termination was in the best interests of the Children.
The juvenile court’s order was supported by clear and convincing evidence, and
there was no error in terminating Father’s parental rights.
[24] Affirmed.
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Najam, J., and Barnes, J., concur.
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