T.K. v. Ind. Dep't of Child Servs. (In re K.T.K.)

972 N.E.2d 418

In re Termination of the Parent–Child Relationship of K.T.K., K.C., & K.R.K., (Minor Children) and T.K. (Father), Appellant–Respondent,

v.Indiana Department of Child Services, Appellee–Petitioner.

No. 15A01–1201–JT–14.

Court of Appeals of Indiana.

Aug. 8, 2012.

Appeal from the Dearborn Circuit Court; The Honorable James D. Humphrey, Judge; Cause No. 15C01–1101–JT–1; 15C01–1101–JT–2; 15C01–1101–JT–3.

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Matthew K. Hagenbush, DCS, Dearborn County Office, Lawrenceburg, IN, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BAKER, Judge.

Appellant-respondent T.K. (Father) appeals the termination of parental rights as to his three minor children, K.T.K., K.C., and K.R.K. Specifically, Father argues that the Indiana Department of Child Services (DCS) failed to establish by clear and convincing evidence that the conditions resulting in the children's continued placement outside the home would not be remedied. Father also argues that the DCS did not prove that termination of his parental rights was in the children's best interests. Concluding that the DCS met its burden, we affirm the judgment of the juvenile court.

FACTS

K.T.K. was born on October 21, 2000, K.C. was born on April 13, 2009, and K.R.K. was born on December 5, 2003. The DCS first became involved in this case in 2009, when it was reported that Mother was nonresponsive due to possible use of narcotics and was unable to respond to her children's needs or ensure their safety.

On August 28, 2009, Mother submitted to a drug test with the result being positive for oxycodone. However, she was not able to provide a valid prescription for the drug. Although she produced a prescription the next day, it was from April 15, 2009 and was only for forty pills.

On September 30, 2009, DCS received a report indicating two days earlier that Mother was found unconscious in a vehicle, with her infant son in the car.

When the DCS made the report, Mother indicated that:

She had no recollection of the event;

On September 30, 2009, she used drugs by snorting hydrocodone in the morning and xanax in the afternoon;

She does not have any current prescriptions for pain medicines; and

She had substance abuse issues and had a desire to quit.

Appellant's App. p. 30. Thereafter, DCS removed the children and placed them with a relative. Mother admitted to the CHINS allegations at the January 15, 2010 fact finding hearing. Mother also had various other substance abuse issues dating back to 1998, that included cocaine, morphine, marijuana, and heroin abuse.

Father was incarcerated in the Indiana Department of Correction (DOC) when the DCS removed the children and for the entire duration of the proceedings. Father's current incarceration stems from a probation violation on his original sentence for dealing in cocaine that was imposed in 2004.

Although the DCS offered no services to Father because he was incarcerated, the DCS case manager kept in contact with Father, updated him whenever major case changes occurred, and ensured his telephonic availability for hearings. While incarcerated, Father attended Ball State University and earned an associate's degree, as well as a journeyman apprenticeship through the U.S. Department of Labor. The DCS case manager indicated that the services and programs that Father was involved in while incarcerated would probably not be the programs needed for reunification with the children.

Although Father kept in contact with the children through letters, and the children wanted to visit with Father, the therapist recommended that they not go into a prison setting. Father also had a criminal history that spanned his children's lives even before the DCS became involved in the current proceedings. More specifically, on August 27, 2004, Father pleaded guilty to dealing in cocaine as a class B felony. He was subsequently sentenced to fourteen years of incarceration with eight years suspended. In imposing that sentence, the trial court noted that Father had committed six criminal offenses since 1997 and considered this an aggravating factor that outweighed any of Father's mitigating factors. Some of those offenses included felony DUI convictions and habitual offender findings. Father admitted to having issues with alcohol abuse.

Father was released from prison on the dealing conviction in March 2006. At that time, he moved in with Mother and the two older children who were then five and two years old. Although Father and Mother attempted to reconcile, they divorced in October 2007. Father had two probation violations that involved drug dealing convictions. The first one resulted in his incarceration from February 7, 2007, until August 8, 2007, for a DUI. The second violation was the result of Father's conviction for another DUI and his subsequent conviction of driving on a suspended license. Based on Father's actions, the trial court revoked his probation and sentenced him to seven years. Father has remained incarcerated through the pendency of the instant proceedings.

On January 5, 2011, the DCS filed a petition for the involuntary termination of the parent-child relationship. Following several hearings on the petition, the trial court entered an order on October 13, 2011, terminating Mother and Father's parental rights as to all three of the children. The trial court subsequently entered an amended order on January 11, 2012. In relevant part, the order provided that

15. Father's significant criminal history is reflective of his priorities and his choices. Father chose to break the law and in doing so jeopardized his children's well being and his ability to have a relationship with them.

16. Father's criminal history further gives little [or] no assurance that his recent positive efforts will translate to a commitment to obey the law in order to provide the stability, structure, and care that his children require.

17. The children [are] well-adjusted and well taken care of in their current foster home, and the foster parents have expressed willingness to adopt.

19. Any reunification effort with the children is likely to be lengthy and difficult for them, as discussed by [the physicians]. The process could take as long as another year. The children have already been in care since October 2009, and permanency is paramount for children.

20. The parents are responsible for the upheaval in the children's lives by and through their own actions.

21. Both [the case manager] and the GAL ... testified that it was their belief that termination was in the best interest of the children and that a reasonable probability existed that the reasons for removal and/or continued placement outside the home would not be remedied.

Father now appeals.¹

DISCUSSION AND DECISION

I. Standard of Review

We initially observe that the Fourteenth Amendment to the United States Constitution protects the traditional right of parents to raise their children. Troxel v. Granville, 530 U.S. 57, 65 (2000); Bester v. Lake Cnty Office of Family & Children, 839 N.E .2d 143, 147 (Ind.2005). But parental rights are not absolute and must be subordinated to the child's interest in determining the proper disposition of a petition to terminate parental rights. In re D.D., 804 N.E.2d 258, 264–65 (Ind.Ct.App.2004). Thus, “parental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities.” Id. at 265. The purpose of terminating parental rights is not to punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind.Ct.App.2004).

When reviewing the termination of parental rights, we will neither reweigh the evidence, nor judge the credibility of the witnesses. In re G.Y., 904 N.E.2d 1257, 1260 (Ind.2009). Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment below. Id. Here, the juvenile court made specific findings and conclusions in its order terminating Mother and Father's parental rights. Where the juvenile court enters specific findings and conclusions, we apply a two-tiered standard of review. Bester, 839 N.E.2d at 147. We first determine whether the evidence supports the findings, and then whether the findings support the judgment. Id. We will not set aside the juvenile court's judgment unless it is clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind.Ct.App.1997). A judgment is clearly erroneous when the evidence does not support the findings or the findings do not support the result. In re S.F., 883 N.E.2d 830, 834 (Ind.Ct.App.2008).

The elements that DCS must allege and prove by clear and convincing evidence in order to effect the termination of parental rights is controlled by Indiana Code section 31–35–2–4(b)(2), wherein it states:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.

(ii) A court has entered a finding under IC 31–34–21–5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made.

(iii) The child has been removed from the parent and has been under the supervision of a county office of family and children or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;

(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...