In the Matter of the Termination of the Parent-Child Relationship of: S.K., Minor Child, D.K., Father v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Nov 26 2018, 8:02 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Renee M. Ortega Curtis T. Hill, Jr.
Lake County Juvenile Public Defender’s Attorney General of Indiana
Office
David E. Corey
Crown Point, Indiana Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination November 26, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of: S.K., Minor Child, 18A-JT-1508
D.K., Father Appeal from the Lake Superior
Court
Appellant-Respondent,
The Honorable Alexis Vazquez
v. Dedelow, Referee
The Honorable Matthew B.
The Indiana Department of Gruett, Judge Pro Tempore
Child Services, Trial Court Cause No.
45D06-1603-JT-89
Appellee-Petitioner.

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1508 | November 26, 2018 Page 1 of 18
[1] D.K. (“Father”) appeals the involuntary termination of his parental rights with

respect to his child, S.K. We affirm.

Facts and Procedural History

[2] S.K. was born in June 2013 to A.K. (“Mother”). At some point, Father

established paternity. On March 17, 2015, the Department of Child Services

(“DCS”) filed a petition alleging S.K. was a child in need of services

(“CHINS”) and that S.K. resided with Mother, who was struggling with a drug

addiction and had been arrested for possession of a hypodermic needle. The

petition also alleged that Mother’s home failed to meet sufficient living

standards and that DCS took custody of S.K. and removed the child from

Mother’s care. On July 22, 2015, the court entered an order which found that

Father made a general admission that S.K. was a CHINS, granted DCS’s

petition, and ordered Father to submit to a parenting assessment and follow

through with recommended treatment, submit to a substance abuse evaluation

and follow through with recommended treatment, and participate in supervised

visitation and the Fatherhood Initiative Program.

[3] On January 20, 2016, the court entered a Review Hearing Order adopting a

permanency plan of reunification or termination of parental rights and

adoption. The court ordered that DCS was to reinstate services for Father and

that it may initiate supervised visitation once Father becomes compliant with

the case plan.

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[4] On March 23, 2016, DCS filed a Termination of Parental Rights Petition. On

April 20, 2016, the court entered a Review Hearing Order adopting a

permanency plan of termination of parental rights and adoption. The court

ordered DCS to continue to provide reunification services to Father.

[5] On May 17, 2018, the court held a termination hearing. 1 Father expressed a

desire to represent himself. The court discussed the dangers and disadvantages

of self-representation, allowed Father to represent himself, and appointed an

attorney as Father’s standby counsel.

[6] April Russ, Father’s probation officer since January 2, 2018, when he was

sentenced to probation in Porter County for resisting law enforcement as a class

A misdemeanor, testified that Father was still on probation in Porter County,

that Father was re-arrested and currently incarcerated for new charges in Lake

County, and that “we have a hold on him in Porter County with a warrant

issued through the court for probation revocation.” Transcript Volume II at 15.

She stated that Father had a diluted drug screen and subsequently tested

positive in January or February 2018 for drugs including amphetamine,

methamphetamine, cocaine, marijuana, and Xanax, which was a technical

violation of probation, and Father agreed to attend Porter Starke for a substance

abuse evaluation and follow through with treatment. She testified that, at a

February 2018 administrative hearing, Father admitted the violation and that

1
The court also heard testimony regarding the termination of the parental relationships of Mother and A.W.
with respect to their child Al.W.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1508 | November 26, 2018 Page 3 of 18
 he “just basically partied.” Id. at 17. She stated that Father did not follow

through with Porter Starke or follow up with her and that Father was arrested

at some point in Lake County for possession of a handgun without a permit, a

level 5 felony, two counts of intimidation as level 6 felonies, and resisting law

enforcement as a class A misdemeanor. She testified that her recommendation

would be that once he is released from Lake County Father serve six months in

the Porter County Jail in addition to anything Lake County may impose. The

court admitted a stipulated plea agreement and order indicating that Father was

convicted of auto theft as a class D felony in 2013. After a break, Father’s

standby counsel indicated to the court that Father asked him to step in as his

counsel, and the court appointed him as Father’s counsel.

[7] Aimee Christian testified that she was the case manager for S.K. from June or

July 2015 until June 2017. When asked how Father did with his substance

abuse services, Christian answered:

He was on and off as well. There was a period, beginning of
January of 2016, where he did participate a little more heavily
than the other parents and that [sic] he had in the past. He was
meeting with his individual therapist. However, he was not
meeting with any other service providers. He had met with his
parent educator three times. His homebased caseworker, he
didn’t meet any of those goals. Would not submit to random
drug screens, although he did allegedly have random drug
screens issued through parole, but he did not present any of those
to me.

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 Id. at 104. She testified Father was court ordered to complete a hair follicle test

in February 2016, he did not complete the test until June 2016, and the result

was positive for cocaine and marijuana. She testified that Father met with his

therapist for a period of time but was incarcerated again. She testified Father

had visitations, “then there was an issue with showing up to visitations under

the influence,” they started “instant screening” Father at the beginning of visits

to ensure he was not under the influence, three visits had to be cancelled

because he was under the influence, and visits were stopped due to Father’s

non-compliance. Id. at 105. When asked if Father ever completed or ever

substantially completed the case plan services, Christian answered: “No.” Id. at

106.

[8] When asked if she recommended adoption as the case plan when she handed

over the case, Christian answered affirmatively because “none of the parents

have been able to meet the case plan objectives,” and “at that point, the case

had been open for two years, over two years and we were not making any

progress and it was in the best interest of the girls to find some stability and be

adopted by people that they know as their caregivers.” Id. at 112. Christian

testified that Father told her he had completed three drug screens through his

parole officer but that Father failed to give her the drug screens. She stated she

informed Father that he was court ordered to complete two drug screens per

week and that he would have to start calling into DCS’s drug screen database,

but Father failed to do so. She testified that Father’s lack of participation

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 occurred when he was incarcerated and that there were two times where Father

was “on the run from the U.S. Marshalls.” Id. at 121.

[9] Family case manager Jeffrey Tinich (“FCM Tinich”) testified that he was

assigned the case on October 19, 2017, and that Father’s services were

suspended at that time for being “in and out of jail, non-compliance, semi-

compliance, non-compliance, as well as not achieving the case plan goals.” Id.

at 129. He testified that S.K. had been removed and was in foster care for

thirty-eight months, that he could not recommend restarting services and

reunification, that it was not in the best interest of S.K. to be prolonged within

the system, that parents had not remedied any of the reasons for removal, that it

had been at least eighteen months since Mother or Father had seen S.K., and

that he was recommending termination of parental rights and adoption. When

asked why he recommended termination, FCM Tinich answered: “I’m

recommending it . . . in the best interest of these girls. And that’s what it comes

down to at the end of the day. They deserve permanency . . . a lifestyle of

stability[, and] a lifestyle of where they can thrive in an environment without

alcohol, drugs, any substance use issues.” Id. at 133. He indicated that Father

was currently incarcerated, was facing charges in Lake County, and regardless

of that outcome was going to be sent to Porter County to face probation

revocation.

[10] On cross-examination by Father’s counsel, FCM Tinich testified that he sent

Father mail to which Father did not respond, that Father did not call him after

he provided his phone numbers, that he decided to visit Father at the Lake

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1508 | November 26, 2018 Page 6 of 18
 County Jail on May 4th, and that Father informed him that he was meeting

with his therapist one to two times per week.

[11] Father presented the testimony of Jackie Miller, a homebased caseworker who

was assigned to the case in July 2016. She testified that she had an initial

meeting with Father in July 2016, that she met with Father approximately

twelve to fifteen times, that “[s]ometimes he was very engaged, very interested

in services, and other times he was not,” that she last met with him in October

2016, and that the referral was closed in November 2016 when Father was

incarcerated. Id. at 160. She described Father as being “[a]pproximately fifty

percent compliant.” Id. at 161. On cross-examination by DCS’s counsel,

Miller testified that Father never met the goals related to housing and

employment.

[12] Father testified that he was an inmate at the Lake County Jail because he was

charged with carrying a handgun without a license and resisting law

enforcement. He testified that he had been “participating in services

throughout all my incarcerations” and was participating in mental health and

drug counseling. Id. at 165. He testified that he met with his therapist, John

Chesser, twice a week, was still participating in drug counseling, had been

screened for drugs, and that “it took me awhile to do the hair follicle, but I did

it.” Id. at 167. He testified that he had S.K. “for almost a year straight,

approximately eight months” for a period beginning in 2014. Id. at 169.

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[13] On cross-examination by DCS’s counsel, Father testified that the Porter County

proceeding resulted from a conviction on January 12, 2018. During cross-

examination by the counsel for the court appointed special advocate, Father

stated that “the best I’ve ever done in my life was when [S.K.] was in my life

when I came home from prison in 2014” and “[t]hat was the longest stretch I’ve

had without being locked up, that eight months.” Id. at 173. When counsel

asked if not seeing S.K. would have been the ultimate motivator for him at that

time, Father answered in part: “You know what, I can’t disagree with your fire

back there. Yeah, you would think. You would think so.” Id. at 174.

[14] On May 25, 2018, the court entered an order terminating the parent-child

relationship between Mother and Father and S.K.2 The court’s order provides

in part:

[7.3] [Father] is currently incarcerated in the Lake County Jail on
pending criminal matters concerning handgun charges. . . .
[Father] has pending criminal charges in two counties, Lake and
Porter Counties in Indiana. [Father] is currently on probation in
Porter County and violated probation by testing positive on his
drug screens. Father tested positive on his screen with his
probation in January/February of 2018, to which the drug test
had to be re-administered due to a diluted sample given by
[Father]. Father was given services through his probation to
assist [him] in becoming drug free. Father was ordered to
participate in the Porter Starke Substance Abuse Program, but
continued to use illegal substances including cocaine,

2
The order also terminated the parent-child relationships of Mother and A.W. with their child Al.W.
3
The trial court’s order includes handwritten numbers beside the paragraphs.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1508 | November 26, 2018 Page 8 of 18
 methamphetamine and Xanax and did not participate in the
program. Porter County continues to have a hold on [Father]
when he is released from Lake County Jail. [Father] has
numerous felony convictions and pending charges. [Father] is
very high risk for recidivism.

[8.] Services were offered to [Father] in March of 2015, but he
did not participate in the services until January of 2016. [Father]
only participated in the case plan in January of 2016, but the only
service [Father] participated in was the therapy. [Father] was
ordered to complete a hair follicle test, but did not complete the
test until June of 2016. [Father’s] drug screens were all positive.
[Father] would appear at the visitations with his child under the
influence. [Father’s] visits ceased due to positive drug screens
and non-compliance with the case plan. Father has not visited
the child since June of 2016. [Father] continued to be in and out
of incarceration during the CHINS case. [Father] was ordered to
enter inpatient substance abuse treatment in January of 2016,
[Father] never completed any such program. [Father] never
obtained stable housing and employment. [Father] made
minimal efforts in complying with the case plan for reunification.

*****

[12.] None of these parents have maintained stable housing or
employment. None of these parents have addressed their
substance abuse issues. None of the parents have shown any
interest in reunifying with their children. All the parents
continue with their criminal activity and substance abuse
problems. Even given the multiple opportunities offered to the
parents, the parents were not willing to meet their responsibility
as parents to confront their substance abuse problems which has
stemmed to criminal problems, and correct the dysfunction that
precipitated the children’s removal in the first place.

*****

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 [14.] The habitual pattern of each of these parents cannot be
ignored. All the parents have been in and out of incarceration
since the onset of these cases and both fathers presently are
incarcerated. . . . All of the parents have not addressed their
substance abuse issues. The Court must look at the best interest
of these children and clearly, parents have not remedied the
reasons for the involvement of the Department of Child Services
or the Court. Neither father is available to care for these children
due to their multiple incarcerations . . . . Due to the habitual
patterns of conduct displayed by all the parents, there is a
substantial probability of future neglect or deprivation of the
children.

[15.] No evidence was presented to suggest that anything has
changed since the Court entered the March 17, 2015 Order: there
is no dispute that the children continue to flourish in their foster
home. It would not be in the children’s best interests to be taken
away from a consistent, stable, family environment to be placed
back into a home where the dysfunction and neglect that caused
their removal have not been addressed.

[16.] None of the parents are providing any emotional or
financial support for the children. No parent has completed any
case plan for reunification. No parent is in a position to properly
parent these children. No parent can provide for the basic needs
of these children. The children are in relative placement and are
bonded and thriving. The children have been removed from
parental care since March of 2015 and have not been returned to
parental care or custody.

[17.] Despite multiple attempts at providing services in an
attempt for reunification, the children remain outside of the
parents’ care. The original allegations of neglect have not been
remedied by the parents. None of these parents have
demonstrated an ability to independently parent the children and
provide necessary care, support and supervision. There is no
basis for assuming they will complete the necessary services and
find one or all of themselves in a position to receive the children
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 back into the home. For over three years, the parents failed to
utilize the available services and make the necessary efforts to
remedy the conditions, which led to intervention by DCS and the
Court.

[18.] The children continue to reside in a stable foster home with
relatives, who have indicated both a willingness and ability to
adopt both the children. It would be unfair to the children to
delay such permanency on the very remote likelihood of the
parents committing to and completing services.

[19.] There is a reasonable probability that the continuation of
the parent-child relationship poses a threat to the well-being of
the children in that: for the reasons stated above. Additionally,
the children deserve a loving, caring, safe, stable, and drug free
home.

[20.] It is in the best interest of the [child] and his health, welfare
and future that the parent-child relationship between the [child]
and his parents be forever fully and absolutely terminated.

[21.] [DCS] has a satisfactory plan for the care and treatment of
the children which is Adoption by the relatives/foster parents . . .

Appellant’s Appendix Volume II at 52-54.

Discussion

[15] The issue is whether the evidence is sufficient to support the termination of

Father’s parental rights. In order to terminate a parent-child relationship, 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

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 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). If the court finds that the allegations in a petition

described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

child relationship. Ind. Code § 31-35-2-8(a).

[16] The State’s burden of proof for establishing the allegations in termination cases

“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

‘heightened burden of proof’ reflecting termination’s ‘serious social

consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

heightened standard is the trial court’s prerogative—in contrast to our well-

settled, highly deferential standard of review.” Id. We do not reweigh the

evidence or determine the credibility of witnesses, but consider only the

evidence that supports the judgment and the reasonable inferences to be drawn

from the evidence. Id. We confine our review to two steps: whether the

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 evidence clearly and convincingly supports the findings, and then whether the

findings clearly and convincingly support the judgment. Id.

[17] Reviewing whether the evidence clearly and convincingly supports the findings,

or the findings clearly and convincingly support the judgment, is not a license to

reweigh the evidence. Id. “[W]e do not independently determine whether that

heightened standard is met, as we would under the ‘constitutional harmless

error standard,’ which requires the reviewing court itself to ‘be sufficiently

confident to declare the error harmless beyond a reasonable doubt.’” Id.

(quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due

regard” to the trial court’s opportunity to judge the credibility of the witnesses

firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,

989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a

case that seems close on a ‘dry record’ may have been much more clear-cut in

person, we must be careful not to substitute our judgment for the trial court

when reviewing the sufficiency of the evidence.” Id. at 640.

[18] We note that the involuntary termination statute is written in the disjunctive

and requires proof of only one of the circumstances listed in Ind. Code § 31-35-

2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we

limit our review to whether DCS established that there was a reasonable

probability that the conditions resulting in the removal or reasons for placement

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 of S.K. outside the home will not be remedied. See Ind. Code § 31-35-2-

4(b)(2)(B)(i).

[19] Father argues that he “did not attend the program to continue to use drugs as

the order states but was actually incarcerated before he could attend.”

Appellant’s Brief at 11. He asserts the re-arrest and not a positive drug screen

caused his probation violation, he does not have numerous felony convictions,

there is no indication that all of his drug screens were positive because he was

completing screens through his probation and DCS did not know the results of

those screens, and there is no indication from the record that he did not have

housing or employment. He argues that the findings do not support the court’s

conclusions that he could not remedy the conditions that resulted in S.K.’s

removal or that termination was in S.K.’s best interests. DCS asserts that

Father’s arguments are requests to reweigh the evidence, that Father engaged in

drug use and criminal activities resulting in his incarcerations and probation

violations, and that he failed to consistently participate in services throughout

the CHINS proceedings.

[20] In determining whether the conditions that resulted in S.K.’s removal will not

be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at 642-643.

First, we identify the conditions that led to removal, and second, we determine

whether there is a reasonable probability that those conditions will not be

remedied. Id. at 643. In the second step, the trial court must judge a parent’s

fitness as of the time of the termination proceeding, taking into consideration

evidence of changed conditions, balancing a parent’s recent improvements

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 against habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. 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. 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 his future

behavior. Id.

[21] The statute does not simply focus on the initial basis for a child’s removal for

purposes of determining whether a parent’s rights should be terminated, but

also those bases resulting in the continued placement outside the home. In re

N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider

evidence of a parent’s prior criminal history, history of neglect, failure to

provide support, lack of adequate housing and employment, and the services

offered by DCS and the parent’s response to those services. Id. Where there

are only temporary improvements and the pattern of conduct shows no overall

progress, the court might reasonably find that under the circumstances the

problematic situation will not improve. Id.

[22] To the extent Father does not challenge the trial court’s findings of fact, the

unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

of the argument that the findings were clearly erroneous), trans. denied.

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[23] The court found that S.K. was removed from the home in March 2015 and that

Father was currently incarcerated in the Lake County Jail on pending criminal

charges as well as facing probation violation in Porter County. To the extent

Father challenges the trial court’s finding that Father continued to use drugs,

Father’s probation officer testified that Father had a diluted drug screen and

subsequently tested positive in January or February 2018 for drugs including

amphetamine, methamphetamine, cocaine, marijuana, and Xanax. Christian,

the case manager for S.K., testified that Father did not submit to random drug

screens for DCS and that Father’s June 2016 hair follicle test was positive for

cocaine and marijuana. As for the trial court’s findings that Father was not

compliant with services, we observe that Christian testified that Father showed

up to visits under the influence and that visits were stopped due to Father’s non-

compliance. FCM Tinich testified that Father’s services were suspended

because Father was in and out of jail and not compliant with services. Father

testified that the eight months he had S.K. was the “the longest stretch I’ve had

without being locked up, that eight months,” and that he was subsequently

incarcerated. Transcript Volume II at 173. Miller testified that Father never

met the goals related to housing and employment.

[24] Based upon the court’s findings and the record, we conclude that clear and

convincing evidence supports the trial court’s determination that there is a

reasonable probability that the conditions leading to S.K.’s removal will not be

remedied.

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[25] 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 the totality of the evidence.

McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

App. 2003). In so doing, the court must subordinate the interests of the parent

to those of the children. Id. Children have a paramount need for permanency

which the Indiana Supreme Court has called a central consideration in

determining the child’s best interests, and the Court has stated that children

cannot wait indefinitely for their parents to work toward preservation or

reunification and courts need not wait until the child is irreversibly harmed such

that the child’s physical, mental, and social development is permanently

impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d

at 647-648. However, focusing on permanency, standing alone, would

impermissibly invert the best-interests inquiry. Id. at 648. Recommendations

by both the case manager and child advocate to terminate parental rights, in

addition to evidence that the conditions resulting in removal will not be

remedied, is sufficient to show by clear and convincing evidence that

termination is in the child’s best interests. A.D.S. v. Ind. Dep’t of Child Servs., 987

N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied .

[26] Christian, the case manager for S.K., testified that “it was in the best interest of

the girls to find some stability and be adopted by people that they know as their

caregivers.” Transcript Volume II at 112. FCM Tinich testified that it was not

in the best interest of S.K. to be prolonged within the system and recommended

termination of the parent-child relationship because it was in S.K.’s best

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 interests. Based on the testimony, as well as the totality of the evidence in the

record and set forth in the court’s termination order, we conclude that the

court’s determination that termination is in the best interests of S.K. is

supported by clear and convincing evidence.

Conclusion

[27] We conclude that the trial court’s judgment terminating the parental rights of

Father is supported by clear and convincing evidence. We find no error and

affirm.

[28] Affirmed.

Altice, J., and Tavitas, J., concur.

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