T.K. (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

[1] T.K. (“Father”) appeals the involuntary termination of his parental rights with respect to his children, S.K. and Ta.K. (the “Children”). We affirm.

Facts and Procedural History

[2] Father and E.R. (“Mother,” and together with Father, “Parents”) are the parents of S.K., who was born in January 2019, and Ta.K., who was born in December 2019. In 2020, the Indiana Department of Child Services (“DCS”) became involved due to alleged domestic violence and methamphetamine use by Parents and alleged that the Children were children in need of services (“CHINS”). The trial court adjudicated the Children as CHINS and later entered an order terminating wardship.

[3] On May 2, 2022, DCS filed a second petition alleging the Children were CHINS. DCS alleged that Mother called law enforcement on April 19, 2022, and stated she wanted to turn herself in on an active warrant. When police arrived to take her into custody, a pat down search revealed a baggie of crystal methamphetamine in Mother's pocket, and she was charged with felony possession of methamphetamine. The petition stated that the Children were in Mother's care, she had not arranged for their care after her arrest, and Father was contacted and took custody of the Children. DCS further alleged that the family had an extensive history with DCS and Parents’ history of domestic violence had been documented through DCS involvement and criminal charges. It alleged that a CHINS case was opened in January 2020 after T.K. was born testing positive for methamphetamine and that a CHINS case with respect to S.K. was opened seven months later due to drug use by Parents, domestic violence between them, and S.K. testing positive for herpes. It indicated that both of those cases were closed with reunification. It further alleged that Parents have a documented history of violating no contact orders and protective orders protecting Mother from Father.

[4] On June 13, 2022, Parents admitted the allegations in the CHINS petition. On July 11, 2022, the court entered a CHINS dispositional order which required Father to keep appointments with service providers, not consume any illegal controlled substances, participate in individual counseling, submit to random drug screens, complete a substance abuse assessment and follow all treatment recommendations, participate in Fatherhood Engagement Services, and participate in supervised visitation with the Children.

[5] Terrance Wilkerson, a Fatherhood Engagement Supervisor, began working with Father in the middle of 2022. Wilkerson consistently talked with Father about and strongly encouraged him to undergo inpatient treatment.

[6] On August 19, 2022, Kyra Clark, a case manager and visit supervisor at Dockside Services, began supervising visits and scheduled about “18 or 20” visits. Transcript Volume II at 81. Of those visits, Father failed to attend six visits and showed up late for three or four visits. In January 2023, the visits were suspended due to “[d]rug usage, noncompliance, the no shows,” failing to call, failing to arrive at the visit at the scheduled time, and to prevent the negative effect on the Children. Id.

[7] On December 21, 2022, Ronald Chupp, the regional director of Dockside Services, completed a substance abuse assessment of Father. According to Chupp, his current assessment, as well as an earlier assessment which he had conducted in July 2020 in the prior CHINS case, revealed Father's same drug use history, his same interactions with Mother, and that he moved in with his parents “to get on his feet.” Id. at 57. Chupp determined that Father had “some pretty serious addictions” including methamphetamine, which was still active, while his “[c]annabis use disorder,” “[a]lcohol use disorder,” and “[c]ocaine use disorder,” were in remission. Id. at 57-58. Chupp recommended a modified intensive outpatient program to address Father's addiction and suggested that he avoid contact with Mother. Father completed the sessions of the modified intensive outpatient program but he “kept using, so that's not a successful completion,” and he was discharged from the program. Id. at 60.

[8] On May 15, 2023, DCS filed a petition for the involuntary termination of the parent-child relationships between Parents and the Children. In early June 2023, Chupp approached Father about inpatient treatment, but Father said he wanted to “do it on his own.” Id. at 65. On October 16, 2023, and after Father received notice of the scheduling of the termination hearing, Father entered Indiana Center for Recovery for inpatient treatment. He was discharged upon successful completion of treatment from the residential program on November 13, 2023. According to a letter from the Indiana Center for Recovery, Father was “stepped down” to its intensive outpatient program. Exhibits Volume II at 129.

[9] On November 15, 2023, the court held a hearing. The court heard testimony from Family Case Manager Supervisor Deborah Banghart (“FCM Supervisor Banghart”), Permanency Case Worker Jasmine Thomas, Chupp, Wilkerson, Court Appointed Special Advocate Kathryn Bailey (“CASA Bailey”), and Father.

[10] On March 8, 2024, the court entered a twenty-page order finding: there is a reasonable probability that the conditions that resulted in the Children's removal and their continued placement outside of the home would not be remedied; the Children had been adjudicated as CHINS on two separate occasions; termination of the parent-child relationship was in the best interests of the Children; and there was a satisfactory plan for the care and treatment of the Children.

Discussion

[11] Father argues that his successful achievement of sobriety refuted the trial court's determination that there was a reasonable probability that the conditions that resulted in the removal of the Children and their continued placement outside of the home would not be remedied. He contends that the court erred in characterizing his relationship with Mother as ongoing and points to his testimony that he denied speaking with Mother two days prior to the termination hearing. He also argues that termination of his parental rights is not in the Children's best interests.

[12] At the time of the petitions and the trial court's order, Ind. Code § 31-35-2-4(b)(2) required DCS 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.

(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.

(Subsequently amended by Pub. L. No. 70-2024, § 4 (eff. March 11, 2024)). 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).

[13] A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. 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. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. Id. We give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Id. “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.

[14] 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). As noted by DCS, Father does not challenge the trial court's conclusion that the Children had been adjudicated CHINS on two separate occasions. For the sake of a complete analysis, we will address his additional argument. To the extent Father argues that the evidence does not support the conclusion that there is a reasonable probability that the conditions that resulted in the removal of the Children and their continued placement outside of the home will not be remedied, we note that, in determining whether the conditions that resulted in a child's removal will not be remedied, we engage in a two-step analysis. See id. 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 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 future behavior. Id. 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, drug abuse, 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. To the extent Father does not challenge the 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.

[15] The trial court's order states:

Father's failure to take any step toward sobriety until the eve of his Termination of Parental Rights Evidentiary Hearing, consistent methamphetamine positive drug screens through the duration of the underlying CHINS matter, failure to break ties with Mother, failure to consistently visit with [the Children] or complete the needed steps to restart visitation with the [Children], and extensive, lengthy history of significant drug use, including heroin and methamphetamine, demonstrates by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the removal and continued placement of [the Children] outside of Father's home will not be remedied.

Appellant's Appendix Volume II at 27.

[16] The record reveals that supervised visits were initially referred for Father at Lifeline, but Father attended only two visits and Lifeline discharged him on “June 2nd” for missing too many visits. Transcript Volume II at 32. DCS placed a new referral for visits with Dockside, and Father “started out doing them fairly often,” but missed several visits, including Ta.K.’s birthday, which affected the Children. Id. On January 6, 2023, the court ordered the visits to be suspended. The court ordered that Parents be compliant with all of their services and be free of methamphetamine for thirty days in order to restart visits. Father did not meet these conditions and last saw the Children on December 30, 2022.

[17] FCM Supervisor Banghart testified that Father had not demonstrated that he could be an adequate parent and stated that he “continues to struggle with methamphetamine usage, with THC”; he has not been able to secure housing for himself;¹ he made no progress in his intensive outpatient treatment classes; and he had not been able to provide sober caregiving for the Children or provide safety or stability. Id. at 33. She testified that Parents have a “very toxic relationship” and there had been “numerous domestic violence incidents between them and they use together and they struggle.” Id. at 34. Despite Chupp characterizing Mother as Father's “kryptonite” and his recommendation that Father avoid contact with Mother, Father failed to do so. Id. at 64. FCM Supervisor Banghart testified that there had been times where Parents had “broken up or they're not together and they have both said that they would stay apart and then one or both of them would contact us and argue the point.” Id. at 34. At the November 15, 2023 hearing, Permanency Case Worker Thomas indicated that Father had told her the previous day that he had last spoken to Mother on November 13.

[18] While Father completed an intensive outpatient treatment at Dockside, he was unable to abstain from illegal substances. Father participated in Fatherhood Engagement but did not complete that service. He missed about twenty-five percent of the random drug screens provided by Cordant. The majority of those screens were “positive for methamphetamines and amphetamines, as well as THC, and there were times where there was suboxone or buprenorphine that showed up on several of the screens as well.”² Id. at 31. In addition to the Cordant screens, FCM Supervisor Banghart personally screened Father between June 2022 and March 2023 and, of those approximately eleven screens, all except one were positive for methamphetamines, amphetamines, and marijuana. Thomas testified that she received the case from FCM Supervisor Banghart in early August and, while Father participated in services, he did not complete any services since she received the case. Further, the most recent drug screen result from Father was from October 2 and was positive for THC and methamphetamine.

[19] While we commend Father's recent treatment, we note that Father entered inpatient treatment only after he received notice of the termination hearing, he completed the program two days prior to the termination hearing, and he had just started the intensive outpatient program. Further, when asked on cross-examination if termination of his rights would still be appropriate if Father was clean at the time of the hearing and if he had been for a period of time, FCM Supervisor Banghart answered:

I do. I feel as though [Father] has had an awful long time to remain clean and 30 days of being clean because he was in an inpatient treatment facility doesn't constitute that he's going to be able to continue that sobriety since he has not been able by his own admission to stay clean since he was a teenager.

Id. at 43. In light of the unchallenged findings and the evidence set forth above and in the record, we cannot say the trial court clearly erred in finding a reasonable probability exists that the conditions resulting in the Children's removal and the reasons for placement outside Father's care will not be remedied.

[20] In determining the best interests of children, the trial court is required to look to the totality of the evidence. McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). The court must subordinate the interests of the parent to those of the children. Id. The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Id. The recommendation of a 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 children'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. “A parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied. We have previously recognized that “[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.” Id. (citation omitted).

[21] FCM Supervisor Banghart testified that she believed termination of Father's parental rights was in the Children's best interest. When asked if she believed “that TPR and adoption is in the [Children's] best interest,” Thomas answered affirmatively. Transcript Volume II at 46. She explained:

The reason why I believe that this is in the best interest of the [Children] is just due to [Mother] not being able to complete any services. No service providers are willing to work with her. She is not willing to be, obtain sobriety, and she is not willing to be cooperative with any service providers. Father, I will say he is engaged, he was engaged in services, but I don't think that they were benefiting just due to him still testing positive. He did complete his inpatient services, which I thought that was good. I do feel that it was a little too late for that just due to our hearing of this month. But he is actively trying to obtain sobriety. He is still trying to continue his services with the Indiana Center program and trying to stay clean, but I just think it's too late.

Id. at 46-47. CASA Bailey testified that she believed termination of Father's parental rights was in the Children's best interest because he “is not able to provide that save [sic] and stable home.” Id. at 88. Based on the totality of the evidence, we conclude the trial court's conclusion that termination is in the Children's best interests is supported by clear and convincing evidence.

[22] For the foregoing reasons, we affirm the trial court.

[23] Affirmed.

FOOTNOTES

1.   FCM Supervisor Banghart testified: “[Father], through the life of the case, has primarily lived with his parents. At one point, they formally evicted him through the courts.” Transcript Volume II at 28-29. She later stated that “there have been multiple times that [Father has] been evicted from their home.” Id. at 38. With respect to whether the home of Father's parents was appropriate, she testified: “I know that there was a protective order between mother and the children and [Father's] mother, and so that is why that home was not appropriate during the life of the case. I'm not sure if that still exists or not.” Id.

2.   FCM Supervisor Banghart testified that Father said suboxone was prescribed but he never provided DCS with a prescription, his levels “were never consistent in any of his screens,” “[s]ome had none in it, some had exorbitant amounts of it in it,” and Mother “had testified that she would get Suboxone for [Father].” Transcript Volume II at 37.

Brown, Judge.

May, J., and Pyle, J., concur.