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

MEMORANDUM DECISION

Case Summary

[1] K.D. (“Father”) appeals the trial court's order terminating his parental rights over his minor child, J.F. (“Child”). Father raises one issue for our review, namely, whether the court clearly erred when it terminated his rights. We affirm.

Facts and Procedural History

[2] Child was born on October 6, 2020, to A.F. (“Mother”) and Father (Collectively, “Parents”).¹ At the time of his birth, Child tested positive for methamphetamine. The Indiana Department of Child Services (“DCS”) got involved, and Parents agreed to participate in an informal adjustment. However, Parents “did not follow services” and “tested positive for illegal substances” during that adjustment. Tr. at 79. In January 2022, Child “was found positive for methamphetamines and present for amphetamines.” Id. As a result, DCS removed Child from Parents’ care on January 21.

[3] On January 25, 2021, DCS filed a petition alleging that Child is Child in Need of Services (“CHINS”). At a hearing, Parents admitted to the allegations in the petition, and the court adjudicated Child a CHINS. The court then entered a dispositional order and ordered Parents to contact DCS every week; allow the family case manager (“FCM”) to conduct visits; enroll in any recommended program; maintain “suitable, safe, and stable housing”; not “use, consume, manufacture, trade, distribute or sell any illegal controlled substances”; complete a substance abuse assessment and all treatment recommendations; and submit to random drug screens. Ex. Vol. 3 at 94.

[4] Father completed a substance abuse assessment on February 6, and it was recommended that he participate in MRT, Matrix, individual therapy, skills coaching, and random drug screening. Between January and July 2021, Father continued to test positive for methamphetamine. Father started the Matrix program in October of 2021, but only attended twelve of twenty visits. In February of 2022, Father “just stopped attending.” Tr. at 38. Father also continued to test positive for methamphetamine, with a positive test on February 21. Thereafter, Father's participation in services increased, and in March 2022, DCS placed Child back in Parents’ home for a “trial home visit.” Id. at 79.

[5] In July, Father restarted services, including a Matrix group class for substance abuse. In September, DCS conducted an unannounced visit to Parents’ house and discovered that Parents had been evicted without having notified DCS of the change in living situation. Father had “inconsistent contact” with DCS, and he continued to test positive for “illegal substances.” Id. at 84. As a result, DCS terminated the trial home visit in October and placed Child in foster care.

[6] After Child was removed, Father stopped participating in services. He began again in March 2023 by joining another Matrix class. However, after Father only attended two of eight classes, he was “dismissed.” Id. at 47. Throughout the proceeding, the only service Father consistently engaged in was visits with Child.

[7] On August 24, DCS filed a petition to terminate Parents’ parental rights over Child. The court ultimately scheduled a fact-finding hearing on DCS's petition for February 9, 2024. In the month leading up to the hearing, Father's participation in services “increased.” Id. at 90. However, on February 1, Father tested positive for methamphetamine. At the time of the hearing, Father was on work release.

[8] During the hearing, various service providers and the FCM testified to Father's inconsistency with services, and DCS presented evidence of his positive drug screens. FCM Brani Reyes testified that she did not believe the reasons for Child's removal would be remedied because, during the “approximately three years” that the case had been pending, “it's been a pattern of [Parents] being able to improve and then not be able to stay consistent to ensure that [they] can provide [a] safe, stable environment that meets [Child's] basic needs.” Id. at 93. She also testified that it is in Child's best interests “[t]o be adopted.” Id. at 94. Similarly, Child's Court-Appointed Special Advocate (“CASA”) testified that “it is in [Child's] best interests to be adopted by his current foster family.” Id. at 103. And the CASA testified that, “due to the pattern,” she did not believe it was “likely” that Parent's would remedy the reasons for Child's removal. Id. at 105.

[9] Following the hearing, the court entered findings of fact and conclusions thereon terminating Parents’ rights over Child. In relevant part, the court found that

Parents have made minimal progress in services during the three (3) years this case has been pending, with Mother progressing almost entirely in the 40 days leading up to the final TPR Fact Finding Hearing (January 1, 2024 to February 9, 2024). Father's demonstration of progress has been even less.

Appellant's App. Vol. 2 at 92.

[10] The court then concluded that there “is a reasonable probability, based upon the past pattern of conduct of the parents, both prior to and during the CHINS base, that the reasons for removal and the reasons for placement outside of parents’ home are likely to continue” and that the “continuation of the parent-child relationship between [Child] and his Mother and Father, demonstrated by the evidence at trial, poses a threat to [Child's] healthy emotional and physical development.” Id. at 95. The court also concluded that termination of the parent-child relationship was in the best interest of Child and that DCS had a satisfactory plan for the care and treatment of Child, namely, adoption. Accordingly, the court terminated Father's parental rights as to Children. This appeal ensued.

Discussion and Decision

[11] Father challenges the trial court's termination of his parental rights over Child. We begin our review of this issue by acknowledging that “[t]he traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Schultz v. Porter Cnty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is proper where a child's emotional and physical development is threatened. Id. Although the right to raise one's own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id. at 836.

[12] Before an involuntary termination of parental rights can occur in Indiana, 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 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․

(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) (2023).² DCS's “burden of proof in termination of parental rights cases is one of ‘clear and convincing evidence.’ ” R.Y. v. Ind. Dept of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260 (Ind. 2009) (quoting I.C. § 31-37-14-2).

[13] When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Off. of Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Moreover, in deference to the trial court's unique position to assess the evidence, we will set aside the court's judgment terminating a parent-child relationship only if it is clearly erroneous. Judy S. v. Noble Cnty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

[14] Here, in terminating Father's parental rights, the trial court entered findings of fact and conclusions thereon. When a trial court's judgment contains special findings and conclusions, we apply a two-tiered standard of review. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports the findings and, second, we determine whether the findings support the judgment. Id. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the trial court's decision, we must affirm. In re L.S., 717 N.E.2d at 208.

[15] On appeal, Father does not challenge any of the factual findings made by the trial court. When findings of fact are unchallenged, this Court accepts them as true. L.M. v. Ind Dep't of Child Servs. (In re S.S.), 120 N.E.3d 605, 608 n.2 (Ind. Ct. App. 2019). As such, if the unchallenged findings clearly and convincingly support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct. App. 2015), trans. denied. Father only challenges the court's conclusions that the reasons for Child's removal or the continued placement outside of his home will not be remedied and that termination is in Child's best interests. We address each argument in turn.

Remedy

[16] Father first contends that the court erred when it concluded that the reasons for Child's removal or the continued placement outside of Father's home will not be remedied. However, Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. As such, “the trial court need only find that one of the ․ requirements of that subsection has been met by clear and convincing evidence.” S.K., Sr. v. Ind. Dep't of Child. Servs. (In re S.K.), 124 N.E.3d 1225, 1233 (Ind. Ct. App. 2019). Here, the court concluded that the State had proven two of three requirements: (1) that there is a reasonable probability that the conditions that resulted in Child's removal or continued placement outside of Father's home will not be remedied and (2) that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to Child's well-being. As Father only challenges the court's “remedy” conclusion but not the “threat” conclusion, he has waived our review of the sufficiency of the evidence to support the court's conclusion on either prong.

[17] Waiver notwithstanding, we hold that the court's unchallenged findings clearly support its conclusion that the reasons for Child's removal and continued placement outside of Father's home will not be remedied. To determine whether there is a reasonable probability that the reasons for Child's continued placement outside of Father's home will not be remedied, the trial court should judge Father's fitness to care for Child at the time of the termination hearing, taking into consideration evidence of changed conditions. See E.M. v. Ind. Dep't of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). However, the court must also “evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child[ren].” Moore v. Jasper Cnty. Dep't of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted). Pursuant to this rule, courts have properly considered evidence of a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. Id. Moreover, DCS is not required to rule out all possibilities of change; rather, it need establish only that there is a reasonable probability the parent's behavior will not change. Id.

[18] Here, Father asserts that the trial court erred when it concluded that the reasons for Child's removal will not be remedied because he “was making progress in addressing his use of illegal substances.” Appellant's Br. at 21. However, as the court's findings demonstrate, Father continued to use drugs despite ample opportunity to address his substance-abuse issues. As a result of his methamphetamine use, Father entered into an IA with DCS in December of 2020. But he tested positive for methamphetamine in January of 2021, which resulted in the removal of Child from his care. Father continued to test positive for methamphetamine between January and July 2021. Father then began to participate in services and make progress, even getting to the point of starting a trial home visit with Child. Father joined a relapse prevention group but only attended twelve out of twenty classes. Father again tested positive for methamphetamine in October 2022, at which point Child was placed in foster care. Father joined a group program for substance abuse but attended only two of eight classes, which resulted in his dismissal from the program. And Father used methamphetamine as recently as eight days prior to the fact-finding hearing on DCS's petition.

[19] While Father may have made some improvement in the weeks leading up to the hearing, the evidence most favorable to the court's judgment demonstrates that Father has a history of substance-abuse issues, that he has had three years to participate in services and resolve his issues, but that he has not successfully addressed them. Father's argument on appeal is simply a request for this Court to reweigh evidence, which we cannot do. We therefore hold that the court did not clearly err when it concluded that there is a reasonable likelihood that the reasons for Child's placement outside of Father's home will not be remedied.

Best Interests

[20] Father also contends that the court erred when it concluded that termination of his parental rights was in Child's best interests. In determining what is in a child's best interests, a court is required to look beyond the factors identified by DCS and consider the totality of the evidence. A.S. v. Ind. Dep't of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A parent's historical inability to provide “adequate housing, stability, and supervision,” in addition to the parent's current inability to do so, supports finding termination of parental rights is in the best interests of the child. Id.

[21] When making its decision, the court must subordinate the interests of the parents to those of the child. See Stewart v. Ind. Dep't of Child Servs. (In re J.S.), 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship.” Id. Moreover, this Court has previously held that recommendations of the family case manager and court-appointed special advocate to terminate parental rights, coupled with evidence that the conditions resulting in removal will not be remedied, are sufficient to show by clear and convincing evidence that termination is in the child's best interests. Id.

[22] On appeal, Father contends that the court erred when it concluded that termination of his rights was in Child's best interests because he and Child “were bonded.” Appellant's Br. at 24. And he maintains that “there is nothing in the record that creates a causal link between these actions or inactions of Father and how it might have harmed” Child. Id. We acknowledge that the evidence demonstrates that Father was bonded with Child. However, Child needs permanency. At the time of the termination hearing, Child, who was just over three years old, had been removed from Father's care for the majority of his life. Indeed, Child was initially removed when he was approximately three months old, and he was only returned to Father's care for the seven months leading up to Child's second birthday.

[23] Further, there is no evidence that, even if Father were to have more time, he would take advantage of the opportunity to complete services. On the contrary, the evidence demonstrates that, despite having had three years to complete services, Father never completed them. Most notably, Father tested positive for methamphetamine only eight days before the hearing at which the court would determine whether to terminate his parental rights. In addition, both the FCM and the CASA testified that it was in Child's best interests to terminate Father's rights and to be adopted because of Father's “pattern” of not being able to stay consistent. Tr. at 93. Father's historic failure to complete services and his continued use of illegal drugs, coupled with the testimony from the FCM and Child's CASA, support the trial court's determination that the termination of Father's parental rights is in Child's best interests.

Conclusion

[24] The trial court did not clearly err when it concluded that the reasons for Child's removal from Father's care and continued placement outside of Father's home will not be remedied or that termination of Father's rights is in Child's best interests. We therefore hold that the trial court did not err when it terminated Father's parental rights over Child. We affirm the trial court.

[25] Affirmed.

FOOTNOTES

1.   In the same order, the trial court terminated Mother's rights over Child. But Mother does not participate in this appeal.

2.   The Indiana General Assembly amended the statute in 2024. We cite to the version in effect at the time DCS filed its petition in 2023.

Bailey, Judge.

Bradford, J., and Foley, J., concur.