In the Matter of the Termination of the Parent-Child Relationship of W.O. K.N. (Mother) and R.O. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                          FILED
    regarded as precedent or cited before any                                  Dec 13 2018, 9:26 am
    court except for the purpose of establishing                                   CLERK
    the defense of res judicata, collateral                                    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT, K.N.                             ATTORNEYS FOR APPELLEE
    Michael B. Troemel                                       Curtis T. Hill, Jr.
    Lafayette, Indiana                                       Attorney General of Indiana
    ATTORNEY FOR APPELLANT, R.O.                             Katherine A. Cornelius
    Deputy Attorney General
    Kyle D. Gobel
    Indianapolis, Indiana
    Collier Gobel, Homann, LLC
    Crawfordsville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Termination                         December 13, 2018
    of the Parent-Child Relationship                         Court of Appeals Case No.
    of W.O.;                                                 18A-JT-1545
    K.N. (Mother) and R.O.                                   Appeal from the Fountain Circuit
    (Father),                                                Court
    The Honorable Stephanie
    Appellants-Respondents,
    Campbell, Judge
    v.                                               Trial Court Cause No.
    23C01-1711-JT-189
    The Indiana Department of
    Child Services,
    Appellee-Petitioner.
    Pyle, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018                  Page 1 of 10
    Statement of the Case
    [1]   K.N. (“Mother”) and R.O. (“Father”) each appeal the termination of the
    parent-child relationship with their daughter, W.O. (“W.O.”), claiming that
    there is insufficient evidence to support the termination. Specifically, Mother
    and Father both argue that the Department of Child Services (“DCS”) failed to
    prove by clear and convincing evidence that: (1) there is a reasonable
    probability that the conditions that resulted in W.O.’s removal or the reasons
    for placement outside the home will not be remedied; and (2) a continuation of
    the parent-child relationship poses a threat to W.O.’s well-being. Both parents
    also argue that DCS failed to prove that termination of the parent-child
    relationships is in W.O.’s best interests. Concluding that there is sufficient
    evidence to support the termination of the parent-child relationships, we affirm
    the trial court’s judgment.
    [2]   We affirm.
    Issue
    The sole issue for our review is whether there is sufficient
    evidence to support the terminations.
    Facts
    [3]   W.O. was born in June 2010. When Mother was stopped for speeding in 2015,
    five-year-old W.O. was in the car. Police officers found marijuana and
    paraphernalia in the car and arrested Mother. A subsequent report to DCS
    revealed that Mother and W.O. had been living in the car and that Father was
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 2 of 10
    living in a tent by the river. W.O. was placed with paternal grandmother, and
    DCS filed a petition alleging that W.O. was a child in need of services
    (“CHINS”). Shortly after DCS filed this petition, Father was arrested and
    charged with possession of marijuana.
    [4]   In September 2015, the trial court adjudicated W.O. to be a CHINS and
    ordered both parents to complete substance abuse and parenting assessments
    and follow all recommendations. The parents were also ordered to abstain
    from the use of illegal drugs and to obtain a stable source of income as well as
    suitable housing.
    [5]   In March 2017, DCS allowed W.O. to return to Mother’s home for a trial
    placement. Father was only allowed supervised visitation because he had failed
    to comply with the court’s orders. Shortly after W.O.’s return to Mother’s
    home, Mother stopped participating in court-ordered programs and refused to
    allow DCS or the court-appointed special advocate (“CASA”) into her home to
    see W.O. In addition, Mother allowed Father to have unsupervised contact
    with W.O. After Mother tested positive for methamphetamine in July 2017,
    the trial court granted DCS’ petition for emergency custody and authorized
    DCS to take W.O. into protective custody.
    [6]   In November 2017, DCS filed a petition to terminate the parental rights of both
    parents. At the February 2018 termination hearing, DCS Family Case
    Manager Angelina Brouillette (“FCM Brouillette”) testified that Mother had
    failed to submit to eight drug screens in September and October 2017 and had
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 3 of 10
    tested positive for methamphetamine and amphetamines in November 2017. In
    December 2017, Mother had refused to give a requested hair sample for a hair
    follicle drug test. FCM Brouillette testified that she was concerned about
    Mother’s continued drug use. According to the case manager, Mother had not
    “been making any progress towards remedying the situation that led to
    [W.O.’s] removal.” (Tr. 150).
    [7]   Regarding Father, FCM Brouillette testified that Father had tested positive for
    Spice in September 2017. The case manager further testified that Father had
    also refused to submit to drug screens from the end of September 2017 until the
    end of October 2017. He, like Mother, had then tested positive for
    methamphetamine and amphetamines in November 2017. According to FCM
    Brouillette, W.O.’s parents have never acknowledged that they have substance
    abuse problems or that they need help for them.
    [8]   FCM Brouillette further testified that termination was in W.O.’s best interest
    because neither parent had “made progress with the case plan.” (Tr. 157).
    According to FCM Brouillette, W.O. had been living with her paternal
    grandmother for over two years and had bonded with her. The plan was for
    grandmother to adopt W.O.
    [9]   CASA Audrey Hayman (“CASA Hayman”) also testified that termination was
    in W.O.’s best interest because W.O. needed stability and permanency.
    Specifically, CASA Hayman explained as follows regarding W.O.: “She needs
    to be safe and she needs to be able to thrive in her environment and, again, we
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 4 of 10
    can’t - - we can’t hit a pause button on a child to wait for parents to get their act
    together.” (Tr. 226).
    [10]   In June 2018, the trial court issued a thirteen-page order terminating both
    parents’ parental rights. Each parent separately appeals the terminations.
    Decision
    [11]   The traditional right of parents to establish a home and raise their children is
    protected by the Fourteenth Amendment to the United States Constitution. In
    re J.W., Jr., 
    27 N.E.3d 1185
    , 1187-88 (Ind. Ct. App. 2015), trans. denied.
    However, a trial court must subordinate the interests of the parents to those of
    the child when evaluating the circumstances surrounding a termination. 
    Id. at 1188
    . Termination of the parent-child relationship is proper where a child’s
    emotional and physical development is threatened. 
    Id.
     Although the right to
    raise one’s own child should not be terminated solely because there is a better
    home available for the child, parental rights may be terminated when a parent is
    unable or unwilling to meet his or her parental responsibilities. 
    Id.
    [12]   Before an involuntary termination of parental rights may occur, DCS 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
    placement outside the home of the parents will not be
    remedied.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 5 of 10
    (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). DCS must prove the alleged circumstances by
    clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 
    989 N.E.2d 1225
    , 1230 (Ind. 2013).
    [13]   When reviewing a termination of parental rights, this Court will not reweigh
    the evidence or judge the credibility of the witnesses. In re R.S., 
    56 N.E.3d 625
    ,
    628 (Ind. 2016). We consider only the evidence and any reasonable inferences
    to be drawn therefrom that support the judgment and give due regard to the
    trial court’s opportunity to judge the credibility of the witnesses firsthand.
    K.T.K., 989 N.E.2d at 1229.
    [14]   When the trial court’s judgment contains specific findings of fact and
    conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56
    N.E.3d at 628. First, we determine whether the evidence supports the findings,
    and second, we determine whether the findings support the judgment. Id. We
    will set aside a trial court’s judgment terminating a parent-child relationship
    only if it is clearly erroneous. Id. Findings are clearly erroneous only when the
    record contains no facts or inferences to be drawn therefrom that support them.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 6 of 10
    In re A.G., 
    6 N.E.3d 952
    , 957 (Ind. Ct. App. 2014). A judgment is clearly
    erroneous if the findings do not support the trial court’s conclusions or the
    conclusions do not support the judgment. 
    Id.
    [15]   Mother and Father first argue that DCS failed to prove by clear and convincing
    evidence that: (1) there is a reasonable probability that the conditions that
    resulted in W.O.’s removal or the reasons for placement outside the home will
    not be remedied; and (2) a continuation of the parent-child relationship poses a
    threat to the W.O.’s well-being. However, we note that INDIANA CODE § 31-
    35-2-4(b)(2)(B) is written in the disjunctive. Therefore, DCS is required to
    establish by clear and convincing evidence only one of the three requirements of
    subsection (B). In re A.K., 
    924 N.E.3d 212
    , 220 (Ind. Ct. App. 2010), trans.
    dismissed. We therefore discuss only whether there is a reasonable probability
    that the conditions that resulted in W.O.’s removal or the reasons for her
    placement outside the home will not be remedied.
    [16]   In determining whether the conditions that resulted in a child’s removal or
    placement outside the home will not be remedied, we engage in a two-step
    analysis. In re E.M., 
    4 N.E.3d 636
    , 643 (Ind. 2014). We first identify the
    conditions that led to removal or placement outside the home and then
    determine whether there is a reasonable probability that those conditions will
    not be remedied. 
    Id.
     The second step requires trial courts to judge a parent’s
    fitness at the time of the termination proceeding, taking into consideration
    evidence of changed conditions and balancing any recent improvements against
    habitual patterns of conduct to determine whether there is a substantial
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 7 of 10
    probability of future neglect or deprivation. 
    Id.
     Habitual conduct may include
    a parent’s prior criminal history, drug and alcohol abuse, history of neglect,
    failure to provide support, and a lack of adequate housing and employment.
    A.D.S. v. Ind. Dep’t of Child Servs., 
    987 N.E.2d 1150
    , 1157 (Ind. Ct. App. 2013),
    trans. denied. The trial court may also consider services offered to the parent by
    DCS and the parent’s response to those services as evidence of whether
    conditions will be remedied. 
    Id.
     Requiring trial courts to give due regard to
    changed conditions does not preclude them from finding that a parent’s past
    behavior is the best predictor of her future behavior. E.M., 4 N.E.3d at 643.
    [17]   Here, our review of the evidence reveals that W.O. was removed from Mother
    because of Mother’s drug use and unstable housing. W.O. could not be placed
    with Father at that time because of his unstable housing and subsequent drug-
    related arrest. Although DCS allowed W.O. to return to Mother’ home for a
    trial placement in March 2017, shortly thereafter, Mother stopped participating
    in court-ordered programs and refused to allow DCS case managers or the
    CASA to see W.O. Mother also allowed Father, who was only allowed
    supervised visitation with W.O, to have unsupervised contact with his
    daughter. In July 2017, Mother tested positive for methamphetamine, and
    DCS removed W.O. from her home. Father tested positive for Spice in
    September 2017, and both Mother and Father refused to submit to drug screens
    from the end of September through the end of October. They both also tested
    positive for amphetamines and methamphetamine in November 2017, just three
    months before the termination hearing. Both parents have refused to
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 8 of 10
    acknowledge and treat the substance abuse problems that led to the removal of
    their daughter. This evidence supports the trial court’s conclusion that there
    was a reasonable probability that the conditions that resulted in W.O.’s removal
    would not be remedied. We find no error.
    [18]   Next, Mother and Father both argue that there is insufficient evidence that the
    termination was in W.O.’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 at the totality of the evidence. In re D.D., 
    804 N.E.2d 258
    , 267 (Ind. Ct.
    App. 2004), trans. denied. In so doing, the court must subordinate the interests
    of the parents to those of the child involved. 
    Id.
     Termination of the parent-
    child relationship is proper where the child’s emotional and physical
    development is threatened. 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 physical, mental, and social development is permanently
    impaired before terminating the parent-child relationship. In addition, a child’s
    need for permanency is a central consideration in determining the child’s best
    interests. In re G.Y., 
    904 N.E.2d 1257
    , 1265 (Ind. 2009). Further, the testimony
    of the service providers may support a finding that termination is in the child’s
    best interests. McBride v. Monroe Cnty. Office of Family and Children, 
    798 N.E.2d 185
    , 203 (Ind. Ct. App. 2003).
    [19]   Here, our review of the evidence reveals that FCM Brouillette and CASA
    Hayman both testified that termination was in W.O.’s best interests because she
    needed stability and permanency. W.O. has lived with paternal grandmother
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 9 of 10
    for more than two years and has bonded with her. The plan is for paternal
    grandmother to adopt W.O., who should not have to wait any longer for her
    parents to acknowledge and seek treatment for their drug problems. The
    testimony of these service providers, as well as the other evidence previously
    discussed, supports the trial court’s conclusion that termination was in W.O.’s
    best interests.
    [20]   We reverse a termination of parental rights “only upon a showing of ‘clear
    error’—that which leaves us with a definite and firm conviction that a mistake
    has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 
    592 N.E.2d 1232
    ,
    1235 (Ind. 1992). We find no such error here and therefore affirm the trial
    court.
    [21]   Affirmed.
    Najam, J., and Crone, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1545 | December 13, 2018   Page 10 of 10
    

Document Info

Docket Number: 18A-JT-1545

Filed Date: 12/13/2018

Precedential Status: Precedential

Modified Date: 12/13/2018