In re Termination of the Parent-Child Relationship of: D.L. (Minor Child) and D.P. (Father) v. The Indiana Department of Child Services (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 04 2017, 9:30 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick A. Turner Curtis T. Hill, Jr. Bloomington, Indiana Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re Termination of the Parent- October 4, 2017 Child Relationship of: Court of Appeals Case No. 07A05-1707-JT-1582 D.L. (Minor Child) Appeal from the Brown Circuit and Court D.P. (Father), The Honorable Judith A. Stewart, Appellant-Respondent, Judge Trial Court Cause No. v. 07C01-1606-JT-73

The Indiana Department of Child Services, Appellee-Petitioner.

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 07A05-1707-JT-1582 | October 4, 2017 Page 1 of 9 Case Summary and Issue [1] D.P. (“Father”) appeals the juvenile court’s termination of his parental rights,

raising three issues for our review, which we consolidate and restate as whether

the juvenile court’s termination order is clearly erroneous. Concluding the

termination order is not clearly erroneous, we affirm.

Facts and Procedural History [2] Father and T.L. (“Mother”) are the parents of D.L. (“Child”), who was born in

May of 2013. The Indiana Department of Child Services (“DCS”) became

involved with Father and Mother in April of 2015 after they admitted to using

illegal narcotics. Father and Mother1 both admitted to using

methamphetamine. In June of 2015, Child was adjudicated a child in need of

services (“CHINS”) and was removed from Father and Mother’s care. Child

now resides with his maternal grandmother, D.K. Pursuant to the juvenile

court’s dispositional CHINS order, Father was ordered to participate in an

intensive outpatient drug addiction treatment program, submit to random drug

screens,2 and remain in regular contact with his family case manager.

[3] In September of 2015, Father began an intensive outpatient program at

Centerstone to treat his methamphetamine addiction issues. However, Father

1 Mother has consented to Child’s adoption. 2 From December 2015 to April 2016, Father only submitted to one out of every four drug screen requests.

Court of Appeals of Indiana | Memorandum Decision 07A05-1707-JT-1582 | October 4, 2017 Page 2 of 9 was discharged from the program in early November after being arrested and

charged with operating a vehicle while intoxicated. Father was later permitted

to return to the Centerstone program but his attendance became “spottier” and

“irregular.” Transcript, Volume II at 146-47. Father admitted during a group

therapy session that he had been using methamphetamine “for [a] while at that

point, off and on.” Id. at 147. Father also admitted using methamphetamine to

his family case manager, Lauren Tarbutton. Centerstone then withdrew Father

from group therapy but permitted Father to participate in individual therapy

sessions.

[4] In January of 2016, Father attempted suicide by carbon monoxide poisoning.

Deputy Jacob Woods of the Brown County Sheriff’s Department responded to

a call of a suspicious vehicle and found Father’s car parked in an on-coming

lane of traffic with Father “asleep or unconscious.” Id. at 121. After being

awoken by Deputy Woods, Father “fad[ed] in and out of consciousness while

sitting in the vehicle” and was transported to the hospital. Id. at 122. Father

later admitted to using speed and methamphetamine before his suicide attempt.

[5] At this point, Father’s methamphetamine addiction had “become more serious”

and DCS recommended Father participate in an inpatient treatment program.

Tr., Vol. III at 27. On January 26, 2016, Father was admitted to a twenty-one-

day inpatient treatment program at Stepping Stones, an alcohol and drug

treatment facility. Father successfully completed the program and was placed

on a waiting list for Stepping Stones’ six-month halfway house program. While

Father waited for an opening in Stepping Stones’ halfway house program, he

Court of Appeals of Indiana | Memorandum Decision 07A05-1707-JT-1582 | October 4, 2017 Page 3 of 9 met with his former counselor at Centerstone and they created a plan for him to

return to an intensive outpatient therapy program. In March of 2016, Father

was sentenced to jail for operating a vehicle while intoxicated and an invasion

of privacy conviction. In April of 2016, Father was released from jail but never

returned to Centerstone or completed therapy.

[6] In May of 2016, Father began Stepping Stones’ halfway house program but left

the program in the middle of the night on June 5, 2016, without discussing his

departure with anyone at the program. After Father left the program, Father

moved to Johnson County with his girlfriend. Father did not communicate

with DCS or his family case manager for several weeks following his departure

from the program. On June 1, 2016, DCS filed a petition to terminate Father’s

parental rights.

[7] On September 19, 2016, Father was arrested and charged with domestic

battery. At the time of the arrest, Father told the arresting officer both he and

his girlfriend had “used,” but it had been days since his last use. Tr., Vol. II at

225. Father also admitted to using Xanax at the time of the incident.

Following his arrest, Father contacted his family case manager, Corina

Harmless, and she questioned him about his recent arrest. Father admitted to

Harmless that he had recently used drugs.

[8] On November 10 and November 13, 2016, the juvenile court held evidentiary

hearings on DCS’ petition to terminate Father’s parental rights. During the

hearings, Father was incarcerated at the Johnson County Jail for violating a

Court of Appeals of Indiana | Memorandum Decision 07A05-1707-JT-1582 | October 4, 2017 Page 4 of 9 protective order. On March 17, 2017, the juvenile court issued its order

terminating Father’s parental rights. The juvenile court concluded DCS proved

by clear and convincing evidence there was a reasonable probability the

conditions that resulted in Child’s removal and placement outside Father’s

home would not be remedied and termination of parental rights was in Child’s

best interest. Father now appeals.

Discussion and Decision I. Standard of Review [9] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. In re I.A., 934 N.E.2d 1127, 1132 (Ind.

2010). We consider only the evidence and reasonable inferences that are most

favorable to the judgment. Id. We must also give “due regard” to the juvenile

court’s unique opportunity to judge the credibility of the witnesses. Id. (citing

Ind. Trial Rule 52(A)). Further, the juvenile court entered findings of fact and

conclusions thereon in granting DCS’s petition to terminate Father’s parental

rights. When reviewing findings of fact and conclusions thereon entered in a

case involving a termination of parental rights, we apply a two-tiered standard

of review. First, we determine whether the evidence supports the findings, and

second, we determine whether the findings support the judgment. Id. We will

set aside the juvenile court’s judgment only if it is clearly erroneous. Id. A

judgment is clearly erroneous if the findings do not support the juvenile court’s

conclusions or the conclusions do not support the judgment. Id.

Court of Appeals of Indiana | Memorandum Decision 07A05-1707-JT-1582 | October 4, 2017 Page 5 of 9 II. Termination Order [10] The termination of parental rights is an extreme measure designed to be utilized

only when all other reasonable efforts have failed. In re K.W., 12 N.E.3d 241,

249 (Ind. 2014). Indiana Code section 31-35-2-4(b)(2) details what DCS must

prove in order to terminate parental rights, which we note in relevant part:

(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.

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(C) that 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.

The State must prove each element by clear and convincing evidence. Ind.

Code § 31-34-12-2.

[11] Father contends the juvenile court’s termination order is clearly erroneous.

Specifically, he claims DCS failed to present clear and convincing evidence

sufficient to establish there is a reasonable probability the conditions resulting in

Child’s removal will not be remedied and that termination of the parent-child

relationship is in Child’s best interests.

Court of Appeals of Indiana | Memorandum Decision 07A05-1707-JT-1582 | October 4, 2017 Page 6 of 9 A. Remedy of Conditions [12] In determining whether conditions leading to a child’s removal will not be

remedied, the juvenile court must judge a parent’s fitness to care for his child at

the time of the termination hearing and must take evidence of changed

conditions into consideration in its decision. In re A.B., 924 N.E.2d 666, 670

(Ind. Ct. App. 2010). The juvenile court must also “evaluate the parent’s

habitual patterns of conduct to determine the probability of future neglect or

deprivation of the child.” Id. at 670 (citation omitted). However, the juvenile

court cannot focus solely on historical conduct to the exclusion of evidence as

to the parent’s current circumstances or evidence of changed conditions. In re

C.M., 960 N.E.2d 169, 175 (Ind. Ct. App. 2011).

[13] In maintaining that DCS did not meet its burden of clear and convincing

evidence, Father points to his efforts in attending rehab and the progress he has

made in battling his addiction issues. Father contends it is “unreasonable and

without evidentiary support to determine that there is a reasonable possibility

that the condition will not be remedied.” Brief of Appellant at 14. Contrary to

this view, there is sufficient evidence to establish a reasonable probability the

condition will not be remedied. In April of 2015, Child was removed from

Father and Mother’s care due to their drug use. Following Child’s removal

from the home, Father was ordered to participate in random drug screens,

complete an intensive outpatient therapy program, and to stay in contact with

his family case manager. Father has yet to complete an intensive outpatient

therapy program as ordered by the juvenile court and has continued, by his own

Court of Appeals of Indiana | Memorandum Decision 07A05-1707-JT-1582 | October 4, 2017 Page 7 of 9 admissions and as recently as September of 2016, to use illegal narcotics.

Moreover, Father has refused numerous drug screens and has submitted to only

one out of every four requests from DCS. Father has engaged in this course of

conduct for over a year and although we acknowledge his efforts in attending

rehab to free himself of his addiction, he has been unsuccessful and his habitual

patterns of conduct demonstrate a failure to remedy the condition leading to

Child’s removal. DCS presented sufficient evidence to meet its burden of proof

the condition will not be remedied.

B. Best Interests [14] Father also contends DCS failed to prove termination of his parental rights was

in Child’s best interest. In determining what is in the best interests of a child,

the juvenile court “is required to look beyond the factors identified by DCS and

look to the totality of the evidence.” In re H.L., 915 N.E.2d 145, 149 (Ind. Ct.

App. 2009).

The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Recommendations of the case manager and court-appointed advocate, in addition to evidence that the conditions resulting in removal will not be remedied, are sufficient to show by clear and convincing evidence that termination is in the child’s best interests.

In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014) (citations omitted), trans.

denied.

Court of Appeals of Indiana | Memorandum Decision 07A05-1707-JT-1582 | October 4, 2017 Page 8 of 9 [15] As noted, DCS presented sufficient evidence to establish the condition would

not be remedied. Further, Chad and Anne Brown, Child’s guardians ad litem,

and Tarbutton, the DCS family case manager, all agreed termination of

Father’s parental rights was in Child’s best interest. See id. at 1006. The record

also reveals maternal grandmother is meeting all of Child’s needs and Child is

doing “exceedingly well” in that environment. Tr., Vol. III at 58-59. We

conclude DCS presented sufficient evidence from which the juvenile court

could conclude termination of Father’s parental rights was in Child’s best

interest.

Conclusion [16] DCS presented sufficient evidence to support the termination of Father’s

parental rights. The judgment of the juvenile court terminating Father’s

parental rights is affirmed.

[17] Affirmed.

Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 07A05-1707-JT-1582 | October 4, 2017 Page 9 of 9