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In re Termination of Parent-Child Relationship of S.K.

Court of Appeals of Indiana

May 13, 2019

In re the Termination of the Parent-Child Relationship of S.K., E.K., and M.K. (Minor Children), and S.K., Sr. (Father), Appellant-Respondent,
Indiana Department of Child Services, Appellee-Petitioner.

          Appeal from the Warren Circuit Court The Honorable Hunter J. Reece, Judge Trial Court Cause Nos. 86C01-1802-JT-10 86C01-1802-JT-11 86C01-1802-JT-12

          Attorney for Appellant Jennifer Fehrenbach Taylor Lafayette, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Abigail R. Recker Robert J. Henke Deputy Attorneys General Indianapolis, Indiana

          MATHIAS, JUDGE.

         [¶1] The Warren Circuit Court terminated S.K.'s ("Father") parental rights to his three minor children, and Father appeals. He raises three issues, which we restate as:

I. Whether the trial court abused its discretion when it allowed the children's therapist to testify concerning statements made by the children;
II. Whether the Department of Child Services ("DCS") proved that it made reasonable efforts to reunify the children and Father; and
III. Whether the trial court's order terminating Father's parental rights is supported by clear and convincing evidence.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] Father has three children: S.K., Jr. born in October 2004, E.K. born in May 2006, and M.K. born in March 2011. DCS removed the children from Father's care in September 2016 after Father was arrested and charged with murdering the children's mother. Father was also charged with arson for burning down Mother's home. DCS placed the children with D.H., their maternal grandmother. Father has not seen the children since their removal and his incarceration.

         [¶4] On September 29, 2016, DCS filed petitions alleging that the children were Children In Need of Services ("CHINS"). Father admitted that he was unable to provide for the children's needs due to his incarceration. The children were adjudicated CHINS on January 11, 2017. Father was ordered to complete certain services upon his release from incarceration.

         [¶5] In January 2018, Father was found guilty of murdering the children's mother and Level 4 arson. On February 22, 2018, Father was ordered to serve an aggregate sentence of sixty-five years for his murder and arson convictions. Father has appealed his convictions, and his appeal is pending.

         [¶6] On February 7, 2018, the trial court entered an order that reasonable efforts to reunify Father and the children were no longer necessary pursuant to Indiana Code section 31-34-21-5.6. Shortly thereafter, DCS filed petitions to involuntarily terminate Father's parental rights to all three children.

         [¶7] Throughout the CHINS and termination proceedings the children have been under the care of a therapist, who also provides family therapy for the children and maternal grandmother. The children are understandably traumatized by their Mother's murder and Father's imprisonment. They are both angry with Father and afraid of him. Tr. p. 105. The oldest child, S.K., Jr., suffers from panic attacks around court dates.

         [¶8] A fact-finding hearing was held on August 15, 2018. The children's therapist testified that each child's mental health is improving, but she does not recommend visitation with Father because this would cause the children to suffer additional trauma. Id. at 109-110. The children still struggle with anxiety and they need stability. The children's court appointed special advocate and their guardian ad litem also testified that the children need stability and terminating Father's parental rights is in the children's best interests. Id. at 126, 128.

         [¶9] DCS intends for the children to be adopted by their maternal grandmother. The children are doing well in their placement with their grandmother, and they are bonded to her and trust her. Their school performance has improved as well. Father testified that he would voluntarily terminate his parental rights if he could be assured that maternal grandmother would be allowed to adopt the children. Id. at 20-21.

         [¶10] On August 17, 2018, the trial court issued an order terminating Father's parental rights to all three children. The trial court noted that the children were previously adjudicated CHINS in 2011 and were removed from parents. In those proceedings, a no contact order was served on Father "for the protection of each of the Children in the respective cases." Appellant's Br. at 22. Father completed assessments for substance abuse, domestic violence, and mental health. The no contact order eventually expired, and the 2011 CHINS proceedings were dismissed at DCS's request.

         [¶11] The trial court also found that in April 2016, Father was charged with and arrested for battery resulting in bodily injury for battering the children's mother. A no contact order was entered against Father for a second time, and the children were removed from Father's care. DCS filed a CHINS petition for the children in June 2016, but the trial court determined that the petition was not supported by probable cause and did not authorize DCS to file the petition. The battery case was dismissed after Father murdered the children's mother in September 2016.

         [¶12] Next, the trial court found that Father does not have the ability to care for his children. The court also noted that although Father was not ordered to participate in programs while incarcerated, he has not made any effort to voluntarily ...

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