Opinion
24A-JT-1403
11-07-2024
In the Matter of the Termination of the Parent-Child Relationship of Ch.C., K.C., and I.C. (Minor Children); v. Indiana Department of Child Services, Appellee-Petitioner Ca.C. (Father), Appellant-Respondent
ATTORNEY FOR APPELLANT Elizabeth A. Deckard Bloom Gates Shipman & Whiteleather LLP Columbia City, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Kosciusko Superior Court The Honorable Karin A. McGrath, Judge Trial Court Cause Nos. 43D01-2311-JT-368, 43D01-2311-JT-369, 43D01-2311-JT-370
ATTORNEY FOR APPELLANT
Elizabeth A. Deckard Bloom Gates Shipman & Whiteleather LLP Columbia City, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE
Case Summary
[¶1] Ca.C. ("Father") appeals the trial court's order terminating his parental rights to Ch.C., K.C., and I.C. ("the Children"). Father argues that the trial court's order is clearly erroneous. We disagree and, accordingly, affirm.
L.W. ("Mother") does not participate in this appeal.
Issue
[¶2] Father raises one issue, which we restate as whether the trial court clearly erred by terminating his parental rights to the Children.
Facts
[¶3] Father and Mother ("the Parents") have three children: Ch.C., who was born in 2009; K.C., who was born in 2012; and I.C., who was born in 2014. The Department of Child Services ("DCS") became involved with the family in February 2021 after law enforcement officers discovered marijuana, unprescribed opiates, and paraphernalia in the hotel room where the family was living. Father tested positive for heroin, morphine, and THC, and Mother tested positive for fentanyl. DCS opened an Informal Adjustment, whereby the Parents agreed to engage in substance abuse treatment.
[¶4] On September 30, 2021, seven-year-old I.C. tested positive for fentanyl. On October 1, 2021, DCS removed the Children and filed a petition alleging that the Children were children in need of services ("CHINS"). DCS was concerned about the Parents' drug use, the Children's home environment, and the Children missing school. The Parents entered a "general admission," whereby they agreed that the Children were CHINS without admitting to the facts alleged by DCS, and the trial court adjudicated the Children to be CHINS. Ex. Vol. III p. 94.
[¶5] As a part of the November 2021 CHINS dispositional order, the Parents were required to, in part, submit to random drug screening, complete a substance abuse assessment and engage in the recommended services, and visit the Children. Father completed a substance abuse assessment but did not engage in the recommended treatment services "on a consistent basis." Tr. Vol. II p. 27. Regarding drug screens, Father submitted only "a handful ...." Id. at 25. The record contains only one drug screen from Father after the CHINS dispositional order, which was an April 2023 drug screen in which Father tested positive for fentanyl.
The other drug screens show that Father tested positive for THC and fentanyl in September 2021, and morphine, THC, and fentanyl in August 2021.
[¶6] Throughout the CHINS proceedings, Father was arrested and charged with several drug-related and other offenses. In April 2023, Father was incarcerated for possession of methamphetamine. He remained incarcerated until January 2024. On November 1, 2023, while Father was incarcerated, DCS filed a petition to terminate the Parents' parental rights to the Children. As Father's release date approached, Father told Family Case Manager ("FCM") Brandi Reyes that he would meet with her on the Monday after he was released; however, Father did not meet with DCS after his release.
[¶7] The trial court held fact-finding hearings on the petition for termination of parental rights on January 25 and March 25, 2024. Father did not attend either hearing. FCM Reyes testified regarding the circumstances surrounding the removal of the Children and Father's lack of compliance with the CHINS dispositional order. She further testified that the Children were placed together in a foster family that wished to adopt them. The Children were "in a stable environment" and "doing well in school." Tr. Vol. II p. 30. K.C. is wheelchair-bound and requires "full on care every single day." Id. at 32. FCM Reyes testified that the "reasons that led to DCS involvement" were not likely to be remedied because the Parents continued to test positive for illegal drugs and "haven't done any services to address drug use." Id. at 30-31.
[¶8] The Court Appointed Special Advocate ("CASA") testified that termination of the Parents' parental rights and adoption by the foster family were in the Children's best interests because the Parents failed to "provide a stable environment" for the Children, failed to address their substance abuse, and were "sporadic" in visiting the Children. Id. at 38. The CASA testified that Father told the Children that, after he was released, he would visit the Children for Ch.C.'s birthday; however, Father did not attend the visit, which was "hurtful" for the Children. Id. at 39.
[¶9] On May 17, 2024, the trial court issued findings of fact and conclusions thereon terminating the Parents' parental rights to the Children. The trial court found:
16. Parents were supposed to call into the Kosciusko County DCS [office] for drug screens every weekday and come in for a test when indicated. Parents did not call in for drug screens throughout the case. Parents only took a handful of drug screens throughout when prompted by the caseworker.
17. DCS was able to drug screen [Father] on[] 8/3/2021 (positive for fentanyl, opiates and THC)[;] 9/14/2021 (THC and fentanyl);[] and 4/19/2023 (fentanyl).
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19. After several missed appointment[s], parents each did a substance use assessment.
20. Father completed a substance use assessment on 3/29/2022 and was recommended to do MRT Substance Use Group and skills coaching.
21. Father did not start or finish either service throughout the entirety of the case.
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27. [Father] was arrested in April 2023 [] on methamphetamine possession charges. He spent several months in jail and was released from incarceration around February 2024. The DCS caseworker had some communication with him after release, but [Father] declined to meet with her.
28. [Father] did not engage in services, drug screens, or visits after release. DCS and father soon fell out of contact. Neither father nor mother appeared at the TPR hearing.
29. Neither parent participated in a community based substance abuse program, such as NA or Celebrate Recovery.
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35. Both CASA and DCS believe TPR/Adoption are in the best interest of the children.
36. The children are doing well in the home and [the foster family is] able to meet the children's needs. Parents have not done any of the recommended services except visits, continued to test positive for fentanyl on the screens DCS was able to obtain from the parents, [and] are in and out of jail on drug charges. The children need permanency in a safe, stable, sober home.
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Appellant's App. Vol. II pp. 40-42. The trial court concluded:
2. There is a reasonable probability that the conditions that resulted in the children's removal or the reasons for placement outside the home of the parents will not be remedied;
a. The reasons for the case opening was drug use, specifically fentanyl use. One of the children tested positive for fentanyl. Parents continue to test positive for fentanyl, when DCS can get a screen from them. Parents have had drug related arrests during the case. Parents have done nothing to attempt to rid themselves of drugs. The conditions that led to removal will not be remedied.
3. There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the children.
a. The children need[] permanency that their parents are unable and unwilling to provide for them.
4. Termination of Parental Rights is in the best interest of the children, per the facts of the case and the opinion of CASA and DCS.Id. at 43. Father now appeals.
Discussion and Decision
[¶10] Father argues that the trial court's order terminating his parental rights to the Children is clearly erroneous. We disagree. The Fourteenth Amendment to the United States Constitution protects the traditional rights of parents to establish a home and raise their children. In re K.T.K. v. Ind. Dep't of Child Servs., Dearborn Cnty. Off., 989 N.E.2d 1225, 1230 (Ind. 2013). "[A] parent's interest in the upbringing of [his or her] child is 'perhaps the oldest of the fundamental liberty interests recognized by th[e] [c]ourt[s].'" Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054 (2000)). We recognize that parental rights are not absolute and must be subordinated to the child's best interests when determining the proper disposition of a petition to terminate parental rights. Id.; see also Matter of Ma.H., 134 N.E.3d 41, 45 (Ind. 2019) ("Parents have a fundamental right to raise their children-but this right is not absolute."), reh'g denied. "When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated." Ma.H., 134 N.E.3d at 45-46.
[¶11] Pursuant to Indiana Code Section 31-35-2-8(c), the trial court "shall enter findings of fact that support the entry of the conclusions required by subsections (a) and (b)" when granting a petition to terminate parental rights. Here, the trial court entered findings of fact and conclusions thereon in granting DCS's petition to terminate Father's parental rights. We affirm a trial court's termination of parental rights decision unless it is clearly erroneous. Ma.H., 134 N.E.3d at 45. A termination of parental rights decision is clearly erroneous when the trial court's findings of fact do not support its legal conclusions, or when the legal conclusions do not support the ultimate decision. Id. We do not reweigh the evidence or judge witness credibility, and we consider only the evidence and reasonable inferences that support the trial court's judgment. Id.
Indiana Code Section 31-35-2-8, governing termination of a parent-child relationship involving a delinquent child or CHINS, provides as follows:
(a) Except as provided in section 4.5(d) of this chapter, 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.
(b) If the court does not find that the allegations in the petition are true, the court shall dismiss the petition.
[¶12] The requirements for the termination of parental rights are codified by statute. Indiana Code Section 31-35-2-8(a) provides that, "if the court finds that the allegations in a petition described in [Indiana Code Section 31-35-2-4] are true, the court shall terminate the parent-child relationship." Indiana Code Section 31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship involving a child in need of services must allege, in part:
(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.
(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.
DCS must establish these allegations by clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
Our General Assembly amended Indiana Code Section 31-35-2-4 effective March 11, 2024. See Ind. Legis. Serv. Pub. L. 70-2024. Because the amended statute took effect after the petition for termination of parental rights was filed in this case, we apply the previous version of the statute. Moreover, our result in this case would be the same under the amended statute.
[¶13] Father challenges the trial court's conclusion that there is a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside the home of the parents will not be remedied. I.C. § 31-35-2-4(b)(2)(B)(i). "In determining whether 'the conditions that resulted in the [Children's] removal . . . will not be remedied,' we 'engage in a two-step analysis.'" In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). "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 (quoting K.T.K., 989 N.E.2d at 1231). In analyzing this second step, the trial court judges the parent's fitness "'as of the time of the termination proceeding, taking into consideration evidence of changed conditions.'" Id. (quoting Bester v. Lake Cnty. Off. of Fam. and Child., 839 N.E.2d 143, 152 (Ind. 2005)). "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 parents' past behavior is the best predictor of their future behavior." Id.
Father also argues that there was no reasonable probability that the continuation of the parent-child relationship posed a threat to the well-being of the Children. Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. Consequently, DCS was required to demonstrate by clear and convincing evidence of a reasonable probability that either: (1) the conditions that resulted in the Children's removal or the reasons for placement outside the home of the parents will not be remedied, or (2) the continuation of the parentchild relationship poses a threat to the well-being of the Children. See, e.g., Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 148 n.5 (Ind. 2005). The trial court here found a reasonable probability that the conditions that resulted in the Children's removal or reasons for placement outside the home of the parents will not be remedied, and there is sufficient evidence to support that conclusion. Accordingly, we do not address whether the continuation of the parent-child relationship poses a threat to the well-being of the Children.
[¶14] We conclude that the trial court did not clearly err by determining that there is a reasonable probability that the conditions that led to the Children's removal will not be remedied. The Children were removed due to the Parents' continued substance abuse, the presence of illegal drugs in the home, and I.C. testing positive for fentanyl. Since then, Father has made little, if any, progress in treating his substance abuse. He did not meaningfully engage in any substance abuse treatment programs or services. He submitted only three drug screens throughout the proceedings, and only one of those was submitted after the CHINS dispositional order was entered. All of Father's drug screens were positive for illegal drugs, including fentanyl, the same drug for which I.C. tested positive when the Children were removed. And throughout the case, Father was arrested and charged with several drug-related and other offenses.
[¶15] Father argues that he was unable to engage in services while incarcerated. He cites In re A.B., 130 N.E.3d 122 (Ind.Ct.App. 2019), abrogated in part on other grounds by In re K.R., 154 N.E.3d 818, 820 (Ind. 2020), which we find distinguishable. In that case, a panel of this Court reversed a termination of parental rights order. The mother had experienced a relapse and was incarcerated for portions of the case, which caused her to miss some of her services. By the time of the termination of parental rights proceedings, however, the mother had maintained her sobriety for at least three months and was participating in treatment for her mental health. Id. at 129. Here, unlike in A.B., Father does not contend that he has maintained his sobriety or done anything to address his substance abuse since he was released from prison. Moreover, after his release, Father refused to meet with DCS and did not even attend the termination of parental rights hearings. The trial court did not clearly err by determining that the conditions that led to the removal of the Children were unlikely to be remedied, and the trial court did not clearly err in terminating Father's parental rights.
Conclusion
[¶16] The trial court did not clearly err in terminating Father's parental rights to the Children. Accordingly, we affirm.
[¶17] Affirmed.
May, J., and DeBoer, J., concur.