In re the Termination of the Parent-Child Relationship of E.P. (Minor Child) and A.P. (Father) and K.D. (Mother) A.P. (Father) and K.D. (Mother) v. Indiana Department of Child Serivces (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 22 2019, 8:26 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT A.P. ATTORNEYS FOR APPELLEE
Joann M. Price Franklin Curtis T. Hill, Jr.
Merrillville, Indiana Attorney General of Indiana
ATTORNEY FOR APPELLANT K.D. Lauren A. Jacobsen
Deputy Attorney General
Deidre L. Monroe
Indianapolis, Indiana
Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the May 22, 2019
Parent-Child Relationship of Court of Appeals Case No.
E.P. (Minor Child) and A.P. 18A-JT-2949
(Father) and K.D. (Mother) Appeal from the
A.P. (Father) and Lake Superior Court
K.D. (Mother), The Honorable
Thomas P. Stefaniak, Jr., Judge
Appellants-Respondents,
Trial Court Cause No.
v. 45D06-1711-JT-300
Indiana Department of Child
Services,
Appellee-Plaintiff
Vaidik, Chief Judge.
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Case Summary
[1] A.P. (“Father”) and K.D. (“Mother”) (collectively, “Parents”) appeal the
termination of their parental rights to E.P. (“Child”). We affirm.
Facts and Procedural History
[2] The undisputed facts are set forth in the trial court’s order. 1 Father and Mother
are the biological parents of Child, who was born in June 2014. Father has two
other children and Mother has three other children that Parents do not share
and are not involved in this appeal.
[3] In May 2016, Child, who was one at the time, was living in Chicago with
Father and his three-year-old daughter (“Child’s sibling”), and Mother was
living at the Mosley Motel in Gary. On May 17 at 1:00 p.m., Lake County
emergency medical services (EMS) was called to Mother’s motel room, where
Father was “trying to save [Mother] from dying from heroin.” Ex. E. After
arriving at the scene, EMS saw that Mother was “rolling around on the ground,
complaining of pain.” Tr. p. 10. EMS believed that Mother was suffering from
heroin withdrawal, took her to the hospital, and contacted the Department of
1
Father argues that “[t]he trial court simply stated that the ‘allegations in the petition are true’ and neglected
to consider the evidence germane to maintaining Father’s parental rights.” Father’s Br. p. 10. That is not so.
For example, the trial court found that “Father was compliant with visitations with [Child] from January
2017 through August 2017.” Father’s App. Vol. II p. 3. Furthermore, we do not agree that the trial court’s
findings are merely a recitation of the evidence presented at the termination hearing. While the order
references evidence, it also contains thoughtful findings that flow from that evidence. As such, we conclude
that the trial court’s findings of fact are sufficient, and because neither Mother nor Father otherwise
challenges the findings, we accept them as true. See Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).
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Child Services (DCS) to report that Child was at the motel with an
“unidentified male.” Id.
[4] DCS assessment worker Leticia Flores responded and found that the
“unidentified male” was Father. Father explained that he had brought Child
and Child’s sibling to the motel from Illinois because Mother told him that she
was going to commit suicide if he did not come. Father said that he thought
bringing the children “would make [Mother] not want to do drugs any longer.”
Id. at 11. Father said that Mother was known to abuse heroin and that she had
been “dope sick” for the last four days. Father also said that he did not know
whether Mother had recently used heroin because she did not use it in front of
him or the children. Id. Father told Flores that he smoked marijuana the
previous week, but when Flores tried to give him an instant drug screen, he
could not produce enough saliva to complete the test. After speaking with
Father, DCS workers took custody of Child, and Flores went to the hospital to
speak with Mother. During Flores’ discussion with her, Mother admitted to
using heroin the prior day, and her toxicology report showed that she had
“benzoates, opiates, and THC” in her system. Id. at 14. When Flores told
Mother that DCS had taken custody of Child, she became irate. Mother tried
to pull out her IV and threw her vomit bucket at Flores. Later that day, Child
was placed in emergency foster care, and DCS filed a petition alleging Child to
be a Child in Need of Services (CHINS). DCS also filed a request to take Child
into custody.
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[5] Two days later, on May 19, the court held a hearing on the CHINS petition and
detention request. Father denied the allegations in the petition. Mother was
still in the hospital and did not appear, so the court continued the initial hearing
on the CHINS petition so that Mother could be present. Regarding DCS’s
request to take custody of Child, the court authorized Child to be placed with
Father for “an extended visit” in Illinois pending the completion of procedures
under the Interstate Compact on the Placement of Children (ICPC). Ex. G.
The court also ordered Parents to submit to random drug screens and to
complete substance-abuse assessments, clinical assessments, and parenting
assessments. Mother was permitted to have supervised visitation with Child.
On July 13, the court resumed the initial hearing on the CHINS petition.
Mother appeared and admitted the allegations in the petition. Father denied
the allegations, and the court set a fact-finding hearing for August 2016.
During the fact-finding hearing, the court heard evidence that some members of
Father’s Illinois household did not complete the ICPC background checks and
that Illinois had denied the ICPC. Following the hearing, the court found that
Child was a CHINS and ordered that Child be removed from Father’s care
because he had not complied with the ICPC process. Child was placed in foster
care with R.G. and his family. The court also ordered that Parents participate
in services, including supervised visitation, drug screens, clinical assessments,
substance-abuse assessments, and parenting assessments. Parents completed
their substance-abuse assessments, but Mother did not complete her intensive
outpatient program as recommended. Parents submitted to some drug screens
but did not complete all the required drug screens. For instance, the court
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ordered Parents to submit to drug screens twice a week, but during an eight-
month period, Mother only submitted to thirteen drug screens and Father only
submitted to seventeen or eighteen drug screens. Later, in February 2017,
Parents stopped submitting to drug screens altogether, even though they were
still obligated to do so.
[6] For a time, Parents participated in supervised visitation with Child, but on
September 14, Parents were detained by police because they brought drug
paraphernalia to one of their visits with Child. After that, DCS requested, and
the court ordered, that visitation be suspended until Parents participated in
services and tested negative for drugs for thirty days. Parents never participated
in services or tested negative for drugs for thirty days to restore visitation with
Child.
[7] In November 2017, DCS filed a petition to terminate Parents’ parental rights,
and the trial court set a fact-finding hearing for August 21, 2018. The day of the
hearing, Parents requested, and the court granted, a continuance to give Parents
an opportunity to participate in saliva drug screens as well as hair-follicle drug
screens. In the first drug screens that Parents had completed in eighteen
months, Father tested positive for THC, heroin, and morphine, and Mother
tested positive for THC, cocaine, heroin, morphine, and fentanyl. Neither
parent ever completed a hair-follicle drug screen. Then, on September 26,
Mother took another saliva drug screen. That day, she tested positive for THC,
cocaine, heroin, morphine, fentanyl, and tramadol, and after this drug screen,
Family Case Manager Anabel Castillo received a call from Forensic Fluids
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explaining that this drug screen showed that Mother had a lethal amount of
fentanyl and heroin in her system.
[8] On October 16, the court resumed the fact-finding hearing on the termination
petition. Flores testified that when Child was removed from Mother’s motel
room, aside from the drug-related issues, she was concerned that Father had
brought Child to the motel knowing that Mother “was saying that she was
going to kill herself if he didn’t come.” Tr. p. 15. FCM Castillo said that
although Child was placed with Father after the detention hearing and
remained in his care until August 2016, Child was later removed because
“Father did not comply with the ICPC process and for that reason Illinois
decided to deny the ICPC.” Id. at 31. Aside from not complying with the
ICPC process, FCM Castillo testified that Father did not comply with drug
screens or other services throughout the CHINS case. Regarding Mother, FCM
Castillo testified that she continued to test positive for drugs throughout the
CHINS case and that in Mother’s September 26 drug screen, there was a lethal
amount of fentanyl and heroin in her system. As far as housing, FCM Castillo
said that throughout the CHINS case, Parents lived in various motels and, at
one point, “they were living in a tent in the woods.” Id. at 36. FCM Castillo
stated that termination of Parents’ parental rights and adoption by Child’s foster
family is in Child’s best interests. R.G. testified that Child had been placed
with his family for two-and-a-half years and that they would pursue adoption of
Child if Parents’ parental rights were terminated. R.G. said that Child had not
had any visits with Parents in over a year and that she “no longer speaks [about
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or] asks any questions about her prior family.” Id. at 55. In November 2018,
the court issued its order terminating Parents’ parental rights.
[9] Father and Mother separately appeal.
Discussion and Decision
[10] Parents contend that the evidence is insufficient to support the trial court’s
order terminating their parental rights to Child. When reviewing the
termination of parental rights, we do not reweigh the evidence or judge witness
credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we
consider only the evidence and reasonable inferences that are most favorable to
the judgment of trial court. Id. When a trial court has entered findings of fact
and conclusions, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. To determine whether a judgment terminating
parental rights is clearly erroneous, we review whether the evidence supports
the trial court’s findings and whether the findings support the judgment. In re
V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).
[11] A petition to terminate parental rights must allege, 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.
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(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. In re K.T.K., 989 N.E.2d at 1231. If the court
finds that the allegations in a petition are true, the court shall terminate the
parent-child relationship. Ind. Code § 31-35-2-8(a).
[12] Parents first argue that there is insufficient evidence to support the trial court’s
conclusion that the conditions resulting in Child’s removal will not be
remedied. In determining whether the conditions that resulted in a child’s
removal will not be remedied, the trial court engages in a two-step analysis.
First, the trial court must ascertain what conditions led to the child’s placement
and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial
court determines whether there is a reasonable probability that those conditions
will not be remedied. Id. “The trial court must consider a parent’s habitual
pattern conduct to determine whether there is a substantial probability of future
neglect or deprivation.” Id.
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[13] Here, Parents failed to demonstrate that they were any closer to providing Child
a safe, stable home than they were at the beginning of the CHINS case. The
trial court found that Mother is taking lethal amounts of drugs and Father
continues to test positive for heroin, morphine, and THC. The trial court
determined that neither parent accepted services offered by DCS and that
Parents have continued with “their dangerous lifestyles and continue to
experience lack of housing.” Mother’s App. Vol. II p. 4. As such, the trial
court did not err when it concluded that there is a reasonable probability that
the conditions resulting in Child’s removal and continued placement outside
the home will not be remedied.2
[14] Next, Mother argues that the trial court erred in concluding that termination is
in Child’s best interests. To determine what is in the child’s best interests, the
trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d
1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must
subordinate the interests of the parents to those of the child. Id. The trial court
need not wait until the child is irreversibly harmed before terminating the
parent-child relationship. Id. “Moreover, the testimony of service providers
2
Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
resulted in Child’s removal will not be remedied, we do not address its alternate conclusion that there is a
reasonable probability that the continuation of the parent-child relationships pose a threat to the well-being of
Child. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2) is
written in the disjunctive and requires the trial court to find only one of the two requirements of subsection
(b) has been established by clear and convincing evidence), trans. denied.
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may support a finding that termination is in the child’s best interests.” In re
Z.B., 108 N.E.3d 895, 903 (Ind. Ct. App. 2018), trans. denied.
[15] Here, in addition to Mother’s substance-abuse issues that necessitated DCS
involvement and her complete lack of progress since then, FCM Castillo
testified that terminating Mother’s parental rights would serve the best interests
of Child. See Tr. p. 35. Furthermore, the trial court found that Child has been
in the same foster home for the past two-and-a-half years (over half her life) and
is bonded to her foster family. See Mother’s App. Vol. II p. 4. Finally, the trial
court concluded that it would “be unfair to [Child] to delay such permanency
on the very remote likelihood of [Parents] committing to and completing
services.” Id. Therefore, the trial court did not err when it determined that
termination is in Child’s best interests. See also In re K.T.K., 989 N.E.2d at 1230
(finding that “children have an interest in terminating parental rights that
prevent adoption and inhibit establishing secure, stable, long-term, continuous
relationships”); see also In re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct. App. 2004)
(children’s needs are too substantial to force them to wait while determining if
their parents will be able to parent them).
[16] Affirmed.
Kirsch, J., and Altice, J., concur.
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