MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           Nov 09 2015, 7:17 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deidre L. Monroe                                         INDIANA DEPARTMENT OF
Lake County Public Defender’s Office                     CHILD SERVICES
Gary, Indiana                                            Gregory F. Zoeller
                                                         Attorney General of Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana
                                                         ATTORNEY FOR APPELLEE CASA
                                                         Donald W. Wruck
                                                         Wruck Paupore PC
                                                         Dyer, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         November 9, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of C.K., Mother, J.E., Father,                           45A04-1503-JT-94
and A.K. and E.K., Children,                             Appeal from the Lake Superior
J.E.,                                                    Court
                                                         The Honorable Thomas P.
Appellant-Respondent,
                                                         Stefaniak, Jr., Judge
        v.




Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 1 of 14
      Indiana Department of Child                              Trial Court Cause Nos.
      Services,                                                45D06-1408-JT-196
                                                               45D06-1408-JT-198
      Appellee-Petitioner,

      Lake County Court Appointed
      Special Advocate,
      Appellee.




      Kirsch, Judge.


[1]   J.E. (“Father”) appeals the juvenile court’s order terminating his parental rights

      to his children, A.K. and E.K. (collectively, “the Children”). He raises the

      following restated issue on appeal: whether the statutory elements for

      terminating Father’s parental rights were established by clear and convincing

      evidence. Specifically, Father contends that the trial court was clearly

      erroneous in finding that (1) there is a reasonable probability the conditions that

      resulted in the Children’s removal or the reasons for placement outside of the

      home will not be remedied; (2) there is a reasonable probability that the

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

      wellbeing; and (3) termination is in the Children’s best interest.


[2]   We affirm.




      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 2 of 14
                                      Facts and Procedural History
[3]   On February 22, 2013, E.K. was born at thirty-five weeks gestation weighing

      four pounds to C.K. (“Mother”).1 The Department of Child Services (“DCS”)

      became involved with E.K. and A.K., E.K.’s then one-year-old sibling,2 that

      same day, when the hospital contacted it to report that E.K. was born

      prematurely and addicted to drugs. Mother admitted to using methadone,

      heroine, and marijuana during her pregnancy. A urine screen returned a

      positive result for marijuana and methadone. A Family Case Manager

      (“FCM”) from DCS investigated the hospital’s report and learned that E.K.

      was in the Neonatal Intensive Care Unit (“NICU”) receiving a morphine drip

      to treat the drug withdrawal symptoms. Additionally, other children had been

      removed from Mother’s care in the past.


[4]   DCS removed the Children without a court order on February 25, 2013 and

      initiated Child in Need of Services (“CHINS”) proceedings. On February 26,

      2013, DCS filed a CHINS petition based on its investigation, and a detention

      hearing was held that same day. The juvenile court subsequently ordered the

      Children’s removal, and Mother and Father (collectively “the Parents”) to

      participate in provisional services. Father was also ordered to establish

      paternity for the Children as he and Mother were never married. On April 29,




      1
        C.K.’s parental rights were also terminated by the juvenile court, but she does not participate in this appeal. We,
      therefore, only recite facts pertaining to her as they relate to Father’s case.
      2
          Mother and Father each have other children; however, E.K. and A.K. are their only biological children together.


      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015                   Page 3 of 14
      2013, after a CHINS fact-finding hearing, the juvenile court adjudicated the

      Children as CHINS retroactive to February 25, 2013. The Parents were

      ordered to participate in services geared towards reunification with the

      Children. The required services, which were similar to the provisional services,

      included a substance abuse evaluation, a clinical assessment to evaluate the

      Parents’ mental health needs, a parenting assessment, ongoing drug screens,

      parenting classes, and home-based casework services. Additionally, Father was

      ordered to find and maintain suitable housing and employment. Although

      Father completed the clinical and substance abuse assessments, he failed to

      successfully complete the other required services.


[5]   Father failed to attend a review hearing3 on May 12, 2014, and the juvenile

      court ordered that all services be stopped due to noncompliance of the Parents.

      Additionally, the juvenile court changed the permanency plan from

      reunification to termination of parental rights with adoption. On August 14,

      2014, DCS filed a petition to terminate the parental rights of Mother and

      Father.


[6]   During the February 10, 2015 termination hearing, Father was evasive about

      his criminal history, but admitted that he had spent time in the Lake County

      and the Porter County Jails, that he had failed to successfully complete his

      probation and that he had spent time in the work release program.




      3
          Father also failed to attend review hearings on July 24, 2013 and August 1, 2014.


      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 4 of 14
[7]   Service providers testified that Father did not make himself available for

      services on a consistent basis, that he was very inconsistent in his visitations

      with the Children, that they had a very difficult time contacting Father to

      arrange visits and that he often cancelled or failed to show up at the designated

      time and place and eventually stopped attending the visitations altogether.

      Father had an overall cancellation rate of eight-five percent.


[8]   As for the home-based services, Father only met with the provider five times

      over a six-month period. Both Father and Mother struggled with

      unemployment and were living in an unsuitable home with “too many

      individuals living there.” Tr. at 60. Father’s FCM tried to help him find

      suitable housing and employment. Those efforts were unsuccessful, and on

      several occasions, Father indicated to the FCM that he did not need the

      services. Further, Father acknowledged at the termination hearing that he

      knew he needed to complete the services in order to have an opportunity to be

      reunited with the Children, but felt that the services were put in place “[f]or

      everyone to make money.” Id. at 46. Moreover, it was unclear during the

      termination hearing where Father had been living throughout the course of the

      case plan.


[9]   According to the testimony of the service providers, Father was in denial of his

      substance abuse problems and had tested positive for opiates on his drug

      screens. Father admitted to having had a problem with alcohol in the past and

      failed to comply with the weekly drug screens or participate in the

      recommended substance abuse counseling. When Father did submit to drug

      Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 5 of 14
       screens, he was inconsistently clean or had abnormal levels of creatinine in his

       system. A service provider testified that abnormal levels of creatinine are

       common when individuals try to flush out or mask drugs in their system. The

       accumulation of these behaviors led the service providers to question Father’s

       interest in staying drug free and his commitment to dealing with his other

       substance abuse issues for the sake of the Children.


[10]   Since the Children were removed by DCS on February 25, 2013, they have not

       returned to either of the Parents. The FCM testified that termination of

       parental rights is in the best interest of the Children. The Children have made

       great strides in their development, and they have bonded with their foster

       parents.


[11]   On February 11, 2015, the juvenile court issued its order terminating the

       parental rights of Father and Mother. Father now appeals.


                                      Discussion and Decision
[12]   We begin our review by acknowledging that this court has a highly deferential

       standard of review in cases concerning the termination of parental rights. In re

       B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When reviewing a

       termination of parental rights case, we will not reweigh the evidence or judge

       the credibility of the witnesses. 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 of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 6 of 14
       court’s judgment terminating a parent-child relationship only if it is clearly

       erroneous. In re B.J., 879 N.E.2d at 14.


[13]   In the present case, the juvenile court entered specific findings of fact and

       conclusions when it terminated Father’s parental rights to the Children. We

       apply a two-tiered standard of review when the trial court’s judgment contains

       specific findings and conclusions. Bester v. Lake Cnty. Office of Family & Children,

       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. We will only conclude that the trial court’s findings are

       clearly erroneous if “the record contains no facts to support them either directly

       or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996).

       Accordingly, we must affirm if the evidence and inferences support the trial

       court’s decision. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.

       Ct. App. 2013), trans. denied.


[14]   The right of parents to establish a home and raise their children is protected by

       the Fourteenth Amendment of the United States Constitution. In re K.T.K., 989

       N.E.2d 1225, 1230 (Ind. 2013). “The parent-child relationship is one of our

       culture’s most valued relationships.” Id. Parental rights are not absolute and

       must be subordinated to the children’s interests when determining the proper

       disposition of a petition to terminate parental rights. In re J.C., 994 N.E.2d 278,

       283 (Ind. Ct. App. 2013). Moreover, although the right to raise one’s own

       children should not be terminated solely because there is a better home for the



       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 7 of 14
       children, parental rights may be terminated when a parent is unable or

       unwilling to meet his or her parental responsibilities. Id.


[15]   Before an involuntary termination of parental rights may occur, the State 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 the
                       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 the 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). The State’s burden of proof for establishing these

       allegations in termination cases “is one of ‘clear and convincing evidence.’” In

       re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).

       Moreover, 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.

       Ind. Code § 31-35-2-8(a) (emphasis added).




       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 8 of 14
[16]   Father argues that DCS failed to prove the required elements for termination of

       parental rights by sufficient evidence. Specifically, he contends that DCS failed

       to present clear and convincing evidence that the conditions that resulted in the

       removal or the reasons for placement outside of the home would not be

       remedied.


[17]   In determining whether there is a reasonable probability that the conditions that

       led to the children’s removal and continued placement outside the home would

       be remedied, the trial court engages in a two-step analysis. In re K.T.K., 989

       N.E.2d at 1231. First, it “must ascertain what conditions led to their placement

       and retention in foster care.” Id. Second, “it must determine whether there is a

       reasonable probability that those conditions will not be remedied.” Id. (citing In

       re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010) (citing In re A.A.C., 682 N.E.2d 542,

       544 (Ind. Ct. App. 1997))). The court must judge a parent’s fitness at the time

       of the termination proceeding, taking into consideration evidence of changed

       conditions and balancing a parent’s recent improvements against “‘habitual

       pattern[s] of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.’” In re E.M., 4 N.E.2d 636, 643 (Ind. 2014)

       (quoting In re K.T.K., 989 N.E.2d at 1231). “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. Although trial

       courts are required to give due regard to changed conditions, this does not

       preclude them from finding that parents’ past behavior is the best predictor of

       their future behavior. Id.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 9 of 14
[18]   Here, the evidence showed that, in February 2013, the Children were removed

       from the Parents due to a report that E.K. was born prematurely and tested

       positive for drugs at birth. Mother admitted to using methadone, heroin, and

       marijuana during her pregnancy. Mother and Father were together at the time

       of the removal, and Father was aware of Mother’s drug use during her

       pregnancy. E.K. was in the NICU for some time after his birth due to

       complications from being premature and addicted to drugs. A.K. was placed

       outside the home with an aunt. The Children were later adjudicated as

       CHINS, and the Parents were ordered to not use illegal substances and submit

       to drug screens; participate in supervised visitation; complete separate

       parenting, clinical, and substance abuse assessments and follow all

       recommendations; complete parenting classes; maintain suitable housing and

       employment; and participate in case management services. The Children

       continued to be placed outside the home for almost two years after they were

       removed in February 2013. During that two-year period, extensive services

       were offered the Parents to help them reunite with the Children, address their

       substance abuse issues, and maintain safe and suitable housing. The trial court

       concluded that the services were ineffective due to the Parents’ non-compliance.


[19]    Father has a criminal record, had his probation revoked in the past, and was

       incarcerated on a probation violation as recently as November 2014. Father

       was inconsistent in participating in the court-ordered services, did not show up

       for several review hearings and frequently missed his visitations with the

       Children. Father attended only five of the weekly home-based service meetings


       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 10 of 14
       over a six-month period. Father repeatedly refused to submit to drug screens or

       was unavailable when service providers attempted to contact him. When

       Father did consent to the drug screens, he had several positive and abnormal

       results indicating that he either had drugs in his system or may have attempted

       to flush out his system. He also refused to participate in the recommended

       substance abuse counseling.


[20]   The juvenile court was presented with evidence that Father was non-compliant

       with those providing services, has a pattern of criminal history, missed a

       significant amount of visitations with the Children, was aware of Mother’s drug

       use during her pregnancy, and showed signs of substance abuse. Based on the

       evidence presented, we conclude that the juvenile court did not err in finding

       that there was a reasonable probability that the conditions that resulted in the

       removal of and the reasons for continued placement of the Children outside the

       home will not be remedied.


[21]   Father argues that DCS failed to present sufficient evidence that the

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

       However, we need not address such argument because Indiana Code section

       31-35-2-4(b)(2)(B) provides that the State must allege and prove by clear and

       convincing evidence one of the three requirements of subsection (b)(2)(B).

       A.D.S., 987 N.E.2d at 1155-56. Having determined that sufficient evidence

       supported the juvenile court’s conclusion that the conditions that resulted in the

       removal of the Children would not be remedied, we do not address whether



       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 11 of 14
       sufficient evidence supported the conclusion that the continuation of the parent-

       child relationship posed a threat to the well-being of the Children.


[22]   Father next argues that insufficient evidence was presented to prove that

       termination is in the best interests of the Children. In determining what is in

       the best interests of the Children, the trial court is required to look at the totality

       of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In

       re D.D., 804 N.E.2d at 267), trans. dismissed. In doing so, the trial court must

       subordinate the interests of the parents to those of the child involved. Id.

       Termination of a parent-child relationship is proper when the child’s emotional

       and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d 927,

       930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the

       child is irreversibly harmed such that his or her physical, mental, and social

       development is permanently impaired before terminating the parent-child

       relationship. Id. The trial court may also consider the services offered as well

       as the parents’ response to those services. Id. If the parents are unable or

       unwilling to effectively use the services recommended to them to properly care

       for their child, it may no longer be in the child’s best interests to maintain the

       relationship. In re M.S., 898 N.E.2d 307, 312 (Ind. Ct. App. 2008) (citing Febert

       v. Marion Cnty. Office of Family & Children, 743 N.E.2d 766, 776 (Ind. Ct. App.

       2001)). Additionally, a child’s need for permanency is an important

       consideration in determining the best interests of a child, and the testimony of

       the service providers may support a finding that termination is in the child’s




       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 12 of 14
       best interests. In re A.K., 924 N.E.2d at 224 (citing McBride v. Monroe Cnty. Office

       of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).


[23]   E.K. has never lived with Father, and it is unclear how much time A.K.

       actually spent in Father’s care prior to the removal. According to the evidence,

       A.K. was cared for by her aunt “off and on since the child was 2 weeks old.”

       State’s Ex. J at 3. The Children are still very young and are at very critical

       points in their development. A.K. and E.K. have and will continue to struggle

       with various problems due to their past which require special attention. To

       ensure that they continue to develop, the Children need a safe, stable drug-free

       home and environment. “Permanency is a central consideration in determining

       the best interests of a child.” In re G.Y., 904 N.E.2d at 1265. Father’s

       inconsistencies and lack of commitment to completing the court-ordered

       services are indicative of the fact that he is unable to provide the necessary

       stability that the Children require and deserve. The evidence showed that the

       Children’s needs are being met by their current foster parents, the Aldrins, who

       wish to adopt them. Additionally, the FCM testified that adoption by the

       Aldrins is in the best interests of the Children because “the home they’re in right

       now is safe and stable, and the kids already have fun with the family.” Tr. at

       103. Based on the above evidence, we conclude that sufficient evidence was

       presented to prove that termination was in the best interests of the Children.

       The juvenile court’s order was supported by clear and convincing evidence, and

       there was no error in terminating Father’s parental rights.


[24]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 13 of 14
Najam, J., and Barnes, J., concur.




Court of Appeals of Indiana | Memorandum Decision 45A04-1503-JT-94 | November 9, 2015   Page 14 of 14
