Termination: KR v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 03 2017, 9:42 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana

Marjorie Newell
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Matter of the May 3, 2017
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: D.D., N.R., and 34A05-1612-JT-2878
T.R., Jr. (Minor Children) Appeal from the Howard Circuit
Court
and The Honorable Lynn Murray,
Judge
K.R. (Mother) and T.R. (Father), Trial Court Cause Nos.
Appellants-Respondents, 34C01-1608-JT-249
34C01-1608-JT-250
v. 34C01-1608-JT-251

Indiana Department of Child
Services,
Appellee-Petitioner.

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 Bradford, Judge.

Case Summary
[1] Appellants-Respondents K.R. (“Mother”) and T.R. (“Father”) (collectively,

“Parents”) appeal the juvenile court’s order terminating their parental rights to

D.D., N.R., and T.R., Jr. (collectively, “the Children”). On September 8, 2014,

Appellee-Petitioner the Indiana Department of Child Services (“DCS”) filed

petitions alleging that the Children were children in need of services

(“CHINS”). Following an evidentiary hearing, the Children were adjudicated

to be CHINS. Parents, both of whom were incarcerated at the time of the

CHINS hearing, were ordered to participate in and complete certain services.

Parents failed to complete the court-ordered services following their releases

from incarceration.

[2] DCS filed petitions seeking the termination of Parents’ parental rights to the

Children on August 18, 2016. Following an evidentiary hearing, the juvenile

court issued an order granting DCS’s petitions. On appeal, Parents contend

that DCS did not provide sufficient evidence to support the termination of their

parental rights. We affirm.

Facts and Procedural History
[3] Father and Mother are the biological parents of D.D., who was born on May

20, 2003, N.R. who was born on October 2, 2006, and T.R., Jr. who was born

on December 29, 2011. DCS substantiated claims against Parents for the
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 educational neglect of D.D. and N.R. in December of 2012. DCS subsequently

substantiated claims of neglect of the Children in August of 2013.

[4] DCS again became involved with the family on September 14, 2014. Upon

making contact with the family, a representative of DCS made the following

observations:

The home was found to have no running water, no food, no
means to cook or produce food (i.e. no stove, oven, microwave,
and refrigerator) and the family was defecating in a bucket in the
bathroom. The home was in the process of being remodeled and
presented several health/safety concerns; there was clutter in the
form of trash, insulation, removed plaster and lathing, power
tools on the floor, exposed wiring, and various components for
methamphetamine production were also discovered in the home.
While the children appeared generally healthy, all three were
suffering from small bite marks that appeared to be bug bites. It
was observed that [T.R., Jr.,] was dressed only in athletic shorts
with no shoes, shirt, underwear or diaper and had blisters on his
feet that were in the process of healing. The two older children
had been withdrawn from school in February 2014 and were not
currently enrolled. While [D.D.] and [N.R.] both reported that
they were homeschooled, neither child could report on what they
were currently learning.

Petitioner’s Ex. 1, p. 1. On this date, Parents were arrested for manufacturing

methamphetamine, possessing an illegal drug lab, and neglect of a dependent.

The Children were removed from the home and taken to the hospital for

examination. Hair samples from D.D. and T.R., Jr. “were found to be positive

for methamphetamine and amphetamine.” Petitioner’s Ex. 1, p. 2. T.R., Jr.’s

hair sample “had drug levels consistent with levels of everyday exposure.”

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 Petitioner’s Ex. 1, p. 2. The Children were subsequently placed together in

foster care.

[5] DCS filed petitions alleging that the Children were CHINS on September 8,

2014. Following a fact-finding hearing, the juvenile court found the Children to

be CHINS on November 3, 2014. Specifically, the juvenile court found as

follows:

The Parents stipulate that the [C]hildren are in need of services
due to their arrest and incarceration. The Intake Officer’s Report
of Preliminary Inquiry is incorporated. Specifically, on
September 4, 2014, the Kokomo Police Department (KPD)
located items used in the manufacturing of methamphetamine in
the home that the Parents and the [C]hildren were residing in.
The Parents were arrested on charges for Manufacturing
Methamphetamine, Illegal Drug Lab, and Neglect of a
Dependent. The [C]hildren’s Parents knew or should have
known that illegal substances were being used and manufactured
at the residence and failed to protect the [C]hildren. Further, the
home was found to be unsafe and unsanitary for the [C]hildren.

Petitioner’s Ex. 4, p. 22.

[6] In a subsequent dispositional order, the juvenile court ordered that Parents

shall: (1) cooperate with DCS, its Family Case Managers (“FCMs”), and any

service providers, including but not limited to following their

recommendations; (2) notify DCS, the FCMs and any service providers in any

change to their contact information; (3) maintain contact with their assigned

FCM and service providers, including notifying them of cancellations of

appointments at least twenty-four hours prior to the scheduled appointment; (4)

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attend, participate in the visitation plan and follow the rules and procedures set

forth by DCS and any service providers coordinating and/or supervising the

visits; (5) submit to random drug and alcohol screens at the discretion of DCS

or its service providers and any unexcused failure to submit to the drug screen

shall be deemed a failed test; (6) attend, participate in and successfully complete

a mental health evaluation and follow all the recommendations of the evaluator

and DCS based on the evaluation, including any after-care programs if deemed

necessary; (7) obtain clean, suitable and stable housing for themselves and their

children and allow DCS and its service providers access to the home; (8) obtain

and maintain gainful employment and provide pay stubs or other evidence to

DCS; (9) attend, participate in and successfully complete a parenting program

and provide proof of completion to DCS and demonstrate effective parenting

skills and abilities in the care of the Children; (10) attend, participate in and

successfully complete a parenting evaluation and follow all of the

recommendations of the evaluator and DCS based on the evaluation; (11)

refrain from all illegal activity and abide by the laws of the State of Indiana and

the United States so as to not jeopardize their ability to care for the Children;

and (12) keep DCS updated as to the status of any pending or current criminal

charges. The trial court further ordered that any visits with the Children shall

be subject to Parents providing DCS with a negative drug and alcohol screen at

the discretion of DCS or the service provider coordinating or supervising the

visitation plan.

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[7] On January 18, 2016, DCS filed petitions seeking the termination of Parents’

parental rights to the Children. The juvenile court conducted an evidentiary

hearing on DCS’s petitions on November 14, 2016. During the evidentiary

hearing, DCS presented evidence indicating that Parents had failed to refrain

from using illegal drugs. In fact, Parents were incarcerated as of the date of the

evidentiary hearing because their continued drug use had led the prosecution in

each of their ongoing criminal cases to seek to revoke their probation. Parents

had also failed to obtain suitable housing, complete necessary services, or

consistently communicate with service providers. Given Parents’ failure to

refrain from using illegal drugs, to obtain suitable housing and to complete

necessary services, two separate DCS FCMs who had worked with the family

and the Children’s Court Appointed Special Advocate (“CASA”) concluded

that termination of Parents’ parental rights was in the Children’s best interests.

[8] Following the conclusion of the hearing, the juvenile court took the matter

under advisement. On December 5, 2016, the juvenile court issued an order

terminating Parents’ parental rights to the Children. This appeal follows.

Discussion and Decision
[9] Parents contend that the evidence is insufficient to sustain the termination of

their parental rights to the Children. The Fourteenth Amendment to the United

States Constitution protects the traditional right of parents to establish a home

and raise their children. Bester v. Lake Cnty. Office of Family & Children, 839

N.E.2d 143, 145 (Ind. 2005). Further, we acknowledge that the parent-child

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 relationship is “one of the most valued relationships of our culture.” Id.

However, although parental rights are of a constitutional dimension, the law

allows for the termination of those rights when parents are unable or unwilling

to meet their responsibility as parents. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct.

App. 2001), trans. denied. Therefore, parental rights are not absolute and must

be subordinated to the children’s interests in determining the appropriate

disposition of a petition to terminate the parent-child relationship. Id.

[10] The purpose of terminating parental rights is not to punish the parents but to

protect the children. Id. Termination of parental rights is proper where the

children’s emotional and physical development is threatened. Id. The juvenile

court need not wait until the children are irreversibly harmed such that their

physical, mental, and social development is permanently impaired before

terminating the parent-child relationship. Id.

[11] Parents contend that the evidence presented at the evidentiary hearing was

insufficient to support the juvenile court’s order terminating their parental

rights. In reviewing termination proceedings on appeal, this court will not

reweigh the evidence or assess the credibility of the witnesses. In re Involuntary

Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App.

2004). We only consider the evidence that supports the juvenile court’s

decision and reasonable inferences drawn therefrom. Id. Where, as here, the

juvenile court includes findings of fact and conclusions thereon in its order

terminating parental rights, our standard of review is two-tiered. Id. First, we

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 must determine whether the evidence supports the findings, and, second,

whether the findings support the legal conclusions. Id.

[12] In deference to the juvenile court’s unique position to assess the evidence, we

set aside the juvenile court’s findings and judgment terminating a parent-child

relationship only if they are clearly erroneous. Id. A finding of fact is clearly

erroneous when there are no facts or inferences drawn therefrom to support it.

Id. A judgment is clearly erroneous only if the legal conclusions made by the

juvenile court are not supported by its findings of fact, or the conclusions do not

support the judgment. Id.

[13] In order to involuntarily terminate parents’ parental rights, DCS must establish

by clear and convincing evidence that:

(A) one (1) of the following exists:
(i) the child[ren] [have] been removed from the
parent[s] 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; or
(iii) the child[ren] [have] been removed from
the parent[s]and [have] 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[ren] [are] removed from the home
as a result of the child[ren] being alleged to be [ ]

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 child[ren] in need of services or [ ] delinquent
child[ren];
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the
conditions that resulted in the child[ren]’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[ren].
(iii) The child[ren] [have], on two (2) separate
occasions, been adjudicated [ ] child[ren] in need of
services;
(C) termination is in the best interests of the child[ren]; and
(D) there is a satisfactory plan for the care and treatment of the
child[ren].

Ind. Code § 31-35-2-4(b)(2). Parents do not dispute that DCS presented

sufficient evidence to support the first, third, and fourth elements set forth in

Indiana Code section 31-35-2-4(b). Parents, however, do claim that DCS failed

to establish that there is a reasonable probability that the conditions that

resulted in the children’s removal will not be remedied.

A. Whether Conditions Will Be Remedied
[14] On appeal, Parents argue that DCS failed to establish by clear and convincing

evidence that the conditions leading to the Children’s removal from their home

would not be remedied. It is well-settled that because Indiana Code section 31-

35-2-4(b)(2)(B) is written in the disjunctive, the juvenile court need only find

either that (1) the conditions resulting in removal from or continued placement

outside the parents’ home will not be remedied, (2) the continuation of the

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 parent-child relationship poses a threat to the children, or (3) the children have

been adjudicated CHINS on two separate occasions. See In re C.C., 788 N.E.2d

847, 854 (Ind. Ct. App. 2003), trans. denied. Therefore, where the juvenile court

determines one of the above-mentioned factors has been proven and there is

sufficient evidence in the record supporting the juvenile court’s determination,

it is not necessary for DCS to prove, or for the juvenile court to find, either of

the other two factors listed in Indiana Code section 31-34-2-4(b)(2)(B). See

generally In re S.P.H., 806 N.E.2d at 882 (providing that because Indiana Code

section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS need only prove

and the juvenile court need only find that one of the factors listed in that sub-

section is true).

[15] We must note that Parents do not challenge the trial court’s determination that

the continuation of the parent-child relationship poses a threat to the Children.

Consequently, Parents have, in effect, conceded that the record contains

sufficient proof to satisfy the requirements of Indiana Code section 31-35-2-

4(b)(2)(B). However, given that this case involves the permanent termination of

Parents’ parental rights to the Children, we will nonetheless address Parents’

claim relating to the sufficiency of the evidence to prove that the conditions

which led the Children’s removal will not be remedied.

[16] In order to determine whether the conditions will be remedied, the juvenile

court should first determine what conditions led DCS to place the children

outside of their parents’ care or to continue the children’s placement outside

their parents’ care, and, second, whether there is a reasonable probability that

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 those conditions will be remedied. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct.

App. 2005), trans. denied; In re S.P.H., 806 N.E.2d at 882. When assessing

whether a reasonable probability exists that the conditions justifying the

children’s removal or continued placement outside their parents’ care will not

be remedied, the juvenile court must judge the parents’ fitness to care for the

children at the time of the termination hearing, taking into consideration

evidence of changed conditions. In re A.N.J., 690 N.E.2d 716, 721 (Ind. Ct.

App. 1997). The juvenile court must also evaluate the parents’ habitual

patterns of conduct to determine whether there is a substantial probability of

future neglect or deprivation. Id.

[17] A juvenile court may properly consider evidence of the parents’ prior criminal

history, drug and alcohol abuse, history of neglect, failure to provide support,

and lack of adequate employment and housing. McBride v. Monroe Cnty. Office of

Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a

juvenile court “‘can reasonably consider the services offered by [DCS] to the

parent and the parent’s response to those services.’” Id. (quoting In re A.C.C.,

682 N.E.2d 542, 544 (Ind. Ct. App. 1997)). The evidence presented by DCS

“need not rule out all possibilities of change; rather, DCS need establish only

that there is a reasonable probability that the [parents’] behavior will not

change.” In re Involuntary Termination of Parent-Child Relationship of Kay L., 867

N.E.2d 236, 242 (Ind. Ct. App. 2007).

[18] In the instant matter, the juvenile court determined that DCS presented

sufficient evidence to prove that it was unlikely that the reasons for the

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Children’s removal from and continued placement outside of Parents’ care

would be remedied, and upon review, we conclude that the juvenile court’s

determination in this respect is supported by the record. In support of its

determination, the juvenile court found as follows:

The Court finds by clear and convincing evidence that it is
reasonably probable that the conditions that led to the removal
and that led to continued placement outside the home, namely
the parents’ inability to provide the [Children] with a safe,
suitable home with adequate supervision and free of substance
abuse, will not be remedied to the degree that they will be able to
provide the [Children] with the nurturing, stable, and appropriate
care and environment that they require on a long term basis.
After well over a year outside of incarceration, the parents failed
to work towards lasting sobriety and stability, and both parents
find themselves back in the criminal justice system. The children
should not have to wait to have a secure, stable and safe
environment in which to live. The court need not wait until [the
Children are] irreversibly harmed such that [their] physical,
mental and social development is permanently impaired before
terminating a parent-child relationship. [In Re M.M., 733 N.E.2d
6 (Ind. Ct. App. 2000)].

Appellants’ App. Vol. II Confidential, pp. 26-27. This finding is consistent with

the juvenile court’s other findings relating to Parents’ failure to acquire suitable

housing, inability to provide appropriate care for the Children, and failure to

maintain their sobriety. The juvenile court concluded that DCS had established

by clear and convincing evidence that the reasons for the Children’s removal

from and continued placement outside Parents’ home would not be remedied.

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[19] In claiming that the evidence was insufficient to support the juvenile court’s

order terminating their parental rights, Parents challenge the juvenile court’s

use of the phrase “independent housing” rather than “suitable housing” in its

findings. However, regardless of the phrase used by the juvenile court, the

record clearly demonstrates that as of the date of the evidentiary hearing,

Parents had failed to acquire suitable housing. Parents challenge to the

sufficiency of the evidence to support the juvenile court’s finding relating to

their failure to acquire suitable housing effectively amounts to an invitation for

this court to reweigh the evidence, which we will not do. See In re S.P.H., 806

N.E.2d at 879.

[20] Parents also challenge the sufficiency of the evidence to support the juvenile

court’s order by claiming that, although the record clearly indicates that Mother

has failed to remain free of drugs, the trial court in her criminal case allegedly

found that she should remain on probation despite her relapse into drug use.

As such, Parents argue that the juvenile court should not consider Mother’s

relapse to be evidence that the conditions leading to the Children’s removal

from Parents’ care will not change. However, given the difference in the

concerns facing the juvenile and trial courts, we find Parents’ argument relating

to the differing treatment by the courts to be unpersuasive. Again, Parents

challenge to the sufficiency of the evidence at most amounts to an invitation for

this court to reassess witness credibility and reweigh the evidence, which we

will not do. See In re S.P.H., 806 N.E.2d at 879.

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[21] The records reveal that Parents have demonstrated a pattern of neglect,

addiction, and criminal behavior. Parents have failed to take any steps which

would reasonably lead one to believe that they will not continue such behaviors

in the future. Parents have also failed to take any steps which would indicate

that they are willing or able to provide the Children with either appropriate care

or a safe and stable living environment. As such, upon review, we conclude

that the juvenile court did not err in concluding that the conditions leading to

the Children’s removal from and continued placement outside Parents’ care

were unlikely to be remedied. See In re C.M., 675 N.E.2d 1134, 1140 (Ind. Ct.

App. 1997).

[22] The judgment of the juvenile court is affirmed.

Najam, J., and Riley, J., concur.

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