In Re JT

742 N.E.2d 509, 2001 WL 38948
Indiana Court of Appeals·Decided January 17, 2001·No. 46A03-0007-JV-244·Published

Opinion

742 N.E.2d 509 (2001)

In the Matter of the Termination of the Parent/Child Relationship of J.T., A Minor Child, and Samantha Timm, Natural Mother and Mark Tawney, Alleged Father.

No. 46A03-0007-JV-244.

Court of Appeals of Indiana.

January 17, 2001.
Transfer Denied April 23, 2001.

*510 Donald W. Pagos, Sweeney, Dabagia, Thorne, Janes & Pagos, Michigan City, Indiana, Attorney for Appellant.

Greta Stirling Friedman, Friedman & Associates, P.C., LaPorte, Indiana, Attorney for Appellee.

OPINION

KIRSCH, Judge.

Samantha Timm appeals the trial court's decision terminating her parental rights to her son, J.T. She raises two issues for review, which we restate as follows:

I. Whether sufficient evidence supports the trial court's determination that there is a reasonable possibility that the conditions resulting in J.T.'s removal will not be remedied.

*511 II. Whether the trial court erred in terminating the natural father's parental rights pursuant to a voluntary consent.

We affirm.

FACTS AND PROCEDURAL HISTORY

On July 3, 1995, J.T. was born to Timm. Mark Tawney's paternity of J.T. was later established. After receiving complaints about possible neglect, the Office of Family and Children (OFC) became involved with the family. At the time, Timm was living in a condemned house that had no running water or electricity. J.T. was adjudged to be a child in need of services and was placed in foster care.

Throughout the next several years, the OFC offered Timm substantial services with the goal of reunifying the family, including homemaker services, child care and safety instruction, transportation, therapy, and visitation. For several months in 1998, J.T. was returned to Timm's care, only to be removed again because of concerns for his safety. None of the services offered to Timm produced sustained improvement. Timm has a borderline low I.Q. of 79 and suffers from adult attention deficit disorder.

OFC eventually filed a petition to terminate the parental rights of Timm and Tawney. Tawney appeared and voluntarily consented to the termination. The trial court held the matter under advisement pending resolution of Timm's case.

After a four-day trial at which fifteen witnesses testified, the trial court terminated Timm's rights as well. Timm now appeals.

DISCUSSION AND DECISION

When reviewing an order terminating parental rights, we will neither reweigh the evidence nor judge the credibility of witnesses. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App.1999), trans. denied (2000); Matter of A.N.J., 690 N.E.2d 716, 720 (Ind.Ct.App.1997). Instead, we consider only the evidence most favorable to the trial court's decision and the reasonable inferences to be drawn therefrom. In re M.M., 733 N.E.2d 6, 11-12 (Ind.Ct.App. 2000); In re L.S., 717 N.E.2d at 208. Where the trial court has entered findings of fact, we will not set aside the trial court's findings and judgment unless clearly erroneous. In re M.M., 733 N.E.2d at 11-12.

The purpose of terminating parental rights is not to punish parents but to protect their children. Id. The parents' constitutional rights to raise their children must be subordinated to the child's interest in determining an appropriate disposition of a petition to terminate parental rights. Id.

In order to terminate parental rights, IC XX-XX-X-X(b)(2) provides that a trial court must find that the OFC has proven by clear and convincing evidence that:

"(A)(i) the child has been removed from the parent for at least six (6) months under a dispositional decree;
...
(B) there is a reasonable probability that:
(i) the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied; or
(ii) the continuation of the parent-child relationship poses a threat to the well-being of the child;
(C) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the child."

Id.

Timm challenges only the sufficiency of the evidence regarding the second subsection, that there is a reasonable probability that the conditions that resulted in the child's removal from the parent's home will not be remedied. Timm does not challenge the trial court's finding that *512 continuation of the parent-child relationship posed a threat to J.T.'s well-being. The statute is written in the disjunctive; it requires the trial court to find only one of the two requirements of subsection (B) by clear and convincing evidence. In re L.S., 717 N.E.2d at 209. Standing alone, the finding that the parent-child relationship posed a threat to the well-being of the children satisfies the requirement listed in subsection (B). Id. As only one of these two factors is necessary to support a termination, even if the evidence on the challenged factor was insufficient, there is still an adequate independent basis for terminating Timm's parental rights because a continuation of the parent-child relationship poses a threat to J.T.

Nonetheless, we review the evidence supporting these findings. J.T. was originally removed from Timm's home in July 1996 because Timm had no stable residence and was unable to meet one-year-old J.T.'s needs for food, shelter, and personal hygiene. J.T. was returned to Timm's care in January 1998 and was removed a second time in August 1998 because Timm failed to recognize or respond to serious concerns about J.T.'s safety.

To determine whether there is a reasonable probability that the conditions which resulted in the removal of the children will not be remedied, the trial court should judge a parent's fitness to care for his children at the time of the termination hearing, taking into consideration evidence of changed conditions. In re M.M., 733 N.E.2d at 13. Due to the permanent effect of termination, the trial court also must evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child. Id.; In re B.D.J., 728 N.E.2d 195, 201 (Ind.Ct.App.2000). The trial court can also reasonably consider the services offered by the OFC to the parent and the parent's response to those services. In re M.M., 733 N.E.2d at 13; In re B.D.J., 728 N.E.2d at 201. A court need not wait until a child is irreversibly harmed such that his physical, mental, and social development is permanently impaired before terminating a parent-child relationship. In re M.M., 733 N.E.2d at 13.

Through the trial testimony of multiple witnesses, the evidence established that Timm's involvement with OFC and the services it offered began in September 1995, shortly after J.T.'s birth, and continued for nearly four years with no sustained improvement before OFC decided to petition to terminate Timm's parental rights. Donna Brown, a caseworker who investigated the complaints that resulted in J.T.'s initial removal, testified that J.T.

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In Re JT, 742 N.E.2d 509, 2001 WL 38948 (Ind. Ct. App. 2001).

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742 N.E.2d 509 (Indiana Court of Appeals, 2001)