L.W. v. Ind. Dep't of Child Servs. (In re D.W.)

• Decision Date: 06 June 2012
• Docket Number: No. 85A05–1109–JT–591.,85A05–1109–JT–591.
• Citation: 969 N.E.2d 89
• Court: Indiana Appellate Court
• Parties: In the Matter of the Termination of the Parent–Child Relationship of D.W., K.K., Ke.K., & L.W. (Minor Children) and J.K. (Father), Appellant–Respondent, v. The Indiana Department of Child Services, Appellee–Petitioner.

969 N.E.2d 89

In the Matter of the Termination of the Parent–Child Relationship of D.W., K.K., Ke.K., & L.W. (Minor Children)andJ.K. (Father), Appellant–Respondent,

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

No. 85A05–1109–JT–591.

Court of Appeals of Indiana.

June 6, 2012.

M. Josh Petruniw, Tiede Metz & Downs, P.C., Wabash, IN, Attorney for Appellant.

David E. Corey, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant–Respondent, J.K. (Father), appeals the trial court's termination of his parental rights to his minor children, D.W., K.K., Ke.K., and L.W.¹

We affirm.

ISSUE

Father raises one issue on appeal, which we restate as the following: Whether the trial court properly terminated his parental rights to his four children.

FACTS AND PROCEDURAL HISTORY

Father and H.W. (Mother) are the parents of four children, D.W., born June 6, 2004; K.K., born August 29, 2005; Ke.K., born July 17, 2008; and L.W., born May 28, 2010. On August 20, 2009, the Wabash County Department of Child Services (DCS) received a report that Mother had been sleeping in a car with her three eldest children, had been leaving her children with various people to care for them, did not have a home or a job, and had a substance abuse problem. The report also stated that Mother's oldest child, D.W., was of school age and was not enrolled in school. At the time, Father was incarcerated. He had been incarcerated since April 1, 2009, and his earliest possible release date was September 2009.

On August 21, 2009, after investigating the report, DCS filed a petition alleging that the children were children in need of services (CHINS). On October 30, 2009, after the parents admitted to the allegations in the CHINS petition, the trial court found the children to be CHINS and placed them into foster care. Subsequently, on December 4, 2009, the trial court held a dispositional hearing whereby it maintained the children's placement in foster care and ordered the parents to complete services and programs. Specifically, the trial court ordered Father to: (1) participate in a parenting and family functioning assessment and follow all recommendations; (2) submit to random drug and alcohol screens as requested with negative results for all substances; (3) participate in home-based services; and (4) receive individual counseling, among other requirements.

On May 28, 2010, during the course of the CHINS proceedings for the eldest three children, Mother gave birth to L.W. Mother's drug screen at the hospital was positive for opiates, and L.W. exhibited signs of withdrawal. As a result, L.W. was transferred to the Neonatal Intensive Care Unit at Lutheran's Children's Hospital. On June 1, 2010, DCS filed a petition alleging that L.W. was a CHINS and placed him in foster care upon his release from the hospital. On July 22, 2010, the trial court conducted a hearing on the CHINS petition and found L.W. to be a CHINS after Mother and Father admitted to the allegations. In its dispositional order, the trial court ordered Father to participate in substantially the same services and programs in which it had ordered him to participate with respect to the CHINS proceedings relating to the elder three children.

Upon his release from incarceration, Father began participating in the programs and services as ordered by the trial court. He completed a substance abuse assessment at the Wabash Bowen Center (Bowen Center), a community mental health center. Based on the results of the assessment, Father was recommended to participate in intensive outpatient group sessions twice a week. Father never completed the program because he did not show up for any of the sessions.

Under the terms of the dispositional order, Father was required to submit to random drug screens. To fulfill this requirement, Father was instructed to call DCS daily to find out whether he needed to take a drug screen that day. If so, he was required to timely submit the screen. In the course of two years of CHINS proceedings, Father only complied with calling in, submitting to drug screens, and testing negative for drugs during three months: December 2009, July, 2010, and March 2010. During the remaining months, Father either did not call in or tested positive for drugs, including heroin, marijuana, alcohol, and opiates. At the termination hearing, Father admitted to using illegal drugs sporadically throughout the CHINS proceedings up to the first day of the trial court's hearing to terminate his parental rights. Father also testified that his drug use caused him to be frequently tardy for work, which led to his dismissal and subsequent unemployment. DCS offered Father therapy for substance abuse, but Father did not participate in the offered therapy.

During the CHINS proceedings, Allison Esch (Esch), a rehabilitation service provider at the Bowen Center, provided Father with home-based services and supervised visits with the children. Father never completed the home-based services due to missed appointments. According to Esch, Father did not show a lot of motivation to follow through with the discussions in the appointments he did attend or to schedule further appointments. Similarly, Father's attendance for court-ordered counseling at the Bowen Center was sporadic. Sometimes he would “hit four sessions in a row and then there [were] a couple of times where he hit two and then he missed several.” (Transcript p. 87).

In addition, there was a period of time where Father “disappeared” and did not have any contact or participation in visitation or any other court-ordered services. In January of 2011, the parents were evicted from their apartment due to their inability to pay the rent. They were required to contact family case manager, Sara Cole (FCM Cole), regarding any updates in their address or contact information, but they did not do so. Instead, FCM Cole did not hear from the parents from January 6, 2011, until the end of March, when she was able to locate them through relatives. During this period, Father did not visit the children or participate in any court-ordered services. When FCM Cole finally talked to Father, he explained that he had felt like the termination had already occurred and that he had been in “a very dark place” during those three months; he had been depressed, living in different places, and using drugs. (Tr. p. 54).

On March 21, 2011, DCS filed petitions requesting the termination of the parents' parental rights towards all four minor children. On August 4 and September 13, 2011, the trial court held an evidentiary hearing. On September 13, Father testified that he was sober, although he admitted that he had still been using drugs around August 4–the first day of the hearing. Father also testified that he had separated from Mother, was living with his father, and was unemployed. At the conclusion of the hearing, the trial court terminated Mother and Father's parental rights to the children.

Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Father argues that the trial court erred in terminating his parental rights because the trial court concluded that the conditions that resulted in the children's removal from his custody would not be remedied. In support of his argument, Father claims that he did not cause the conditions that resulted in the children's removal—the three older children were removed from Mother's custody while Father was incarcerated, and L.W. was removed as a result of Mother's use of narcotics during the pregnancy. Thus, according to Father, he cannot be held responsible for a failure to remedy those conditions.

We recognize that the Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. In re J.S.O., 938 N.E.2d 271, 274 (Ind.Ct.App.2010). A parent's interest in the care, custody, and control of his or her children is arguably one of the oldest of our fundamental liberty interests. Id. However, the trial court must subordinate the interests of the parents to those of the children when evaluating the circumstances surrounding a termination of a parent-child relationship. In re J.H., 911 N.E.2d 69, 73 (Ind.Ct.App.2009), trans. denied. Parental rights may therefore be terminated when the parents are unable or unwilling to meet their parental responsibilities. Id.

In reviewing termination proceedings on appeal, this court must not reweigh the evidence nor assess the credibility of the witnesses. Id. We consider only the evidence that supports the trial court's decision and the reasonable inferences drawn therefrom. Id. Where, as here, the trial court has entered findings of fact and conclusions of law, we apply a two-tiered standard of review. Id. First, we determine whether the evidence supports the findings, and second, whether the findings support the conclusions of law. Id. In deference to the trial court's position to assess the evidence, we set aside the trial court's findings and judgment terminating the parent-child relationship only if they are clearly erroneous. Id.

In order to terminate Father's parental rights, DCS was required to prove by clear and convincing evidence:

(B) that one of the following [was] true:

(i) There [was] a reasonable probability that the conditions that resulted in the child[ren]'s removal or the reasons for placement outside the home of the parents [would] not be remedied.

(ii) There [was] a reasonable probability that the continuation of the parent-child relationship [posed] a threat to the well-being of the child[ren].

(iii) The child[ren] [had], on two (2) separate occasions, been adjudicated [ ] in need of services[.]

(C) that termination [was] in the best interests of the child[ren].

Ind.Code § 31–35–2–4(b)(2)(B), –(C).² Clear and convincing evidence as a standard of proof requires...