Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Mar 03 2014, 9:30 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: D.H. GREGORY F. ZOELLER MEGAN B. QUIRK Attorney General Public Defender Muncie, Indiana ROBERT J. HENKE Deputy Attorney General ATTORNEY FOR APPELLANT: J.P.D. DAVID E. COREY Deputy Attorney General KRISTIN R. WILLADSEN Indianapolis, Indiana Public Defender Muncie, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN RE THE INVOLUNTARY TERMINATION ) OF THE PARENT-CHILD RELATIONSHIP OF ) D.D. and J.D.: ) ) D.H. (Mother) and J.P.D. (Father) ) ) Appellants-Respondents, ) ) vs. ) No. 18A02-1307-JT-657 ) THE INDIANA DEPARTMENT OF CHILD ) SERVICES, ) ) Appellee-Petitioner. ) )
APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Kimberly Dowling, Judge The Honorable Brian Pierce, Magistrate Cause No. 18C02-1205-JT-12 Cause No. 18C02-1205-JT-13 March 3, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
D.H. (Mother) and J.P.D. (Father) (collectively, the Parents) appeal the involuntary
termination of their parental rights to two of their children, D.D. and J.D. (collectively, the
Children). Mother and Father challenge the sufficiency of the evidence supporting the
juvenile court’s judgment.
We affirm.
The Parents have produced five biological children together. Their parental rights to
their three eldest children were terminated in May 2005.1 This appeal concerns the
termination of the Parent’s parental rights to their two subsequently-born sons, D.D. and J.D.
By April 2011, the Parents had ended their relationship, and D.D. and J.D., who were at that
time five and three years old, respectively, were living with Father. On April 29, 2011, the
Department of Child Services (DCS) took custody of the Children when Father was arrested
for drug offenses and probation violations. On May 2, 2011, DCS filed a Child in Need of
Services (CHINS) petition alleging that the Children were CHINS because Father had been
arrested and no caregiver was available for the Children. On the same day, the juvenile court
1 We note that DCS did not seek a determination pursuant to Ind. Code Ann. § 31-34-21-5.6 (West, Westlaw current through 2013 1st Reg. Sess. & 1st Reg. Technical Sess.) that reasonable efforts to reunify the Children with the Parents were not required due to the previous terminations of the Parents’ parental rights to the Children’s siblings.
2 held a detention hearing, placed the Children with Mother, and referred the case to a program
of informal adjustment.
A little over two weeks later, Mother was arrested for Drug Court violations. Because
Father was still incarcerated, DCS again took custody of the Children and filed a second
CHINS petition. An initial hearing was held on May 31, 2011, at which Mother admitted
that the Children were CHINS, and Father denied the allegations. The Children were
subsequently adjudicated CHINS and wardship was granted to DCS.
Father pleaded guilty to class D felony maintaining a common nuisance and class A
misdemeanor possession of marijuana and was sentenced accordingly. Father was released
from jail in July 2011, and the Children were placed in his care shortly thereafter. Less than
a month later, however, Father, who suffers from bipolar disorder and post-traumatic stress
disorder, had a nervous breakdown and was admitted to the Marion VA Hospital for
treatment. During this time, Father left the Children with an unauthorized caregiver, and the
Children’s whereabouts were initially unknown to the Family Case Manager (FCM). Once
the Children were located, they were placed in foster care, where they remained following
Father’s discharge from the hospital. Mother remained in jail until December 2011 and then
resided in halfway houses until April 2012.
DCS filed petitions to terminate the Parents’ rights to the Children on May 18, 2012.2
A review hearing in the CHINS case was held on July 2, 2013, at which the juvenile court
2 Separate termination petitions were filed for both of the Children under separate cause numbers, and the juvenile court entered separate termination orders under each cause number. The separate trial court cause numbers have been consolidated under a single appellate case number.
3 observed that Mother and Father had both been visiting the Children on a regular basis and
that Mother had cooperated with DCS with respect to participating in services and
maintaining regular contact with the FCM. The juvenile court found that Father was not
cooperative with services or maintaining contact with the FCM. The juvenile court entered
an order authorizing Mother to have unsupervised visitation and Father to have supervised
visitation, and allowing visitation to be increased or unsupervised at DCS’s discretion.
After the juvenile court authorized unsupervised visitation for Mother, DCS planned
to begin overnight visitation and transition to a trial home visit. Mother then moved
residences and DCS received reports that Mother and her husband were using drugs. The
FCM attempted to get into contact with Mother to conduct a drug screen, but was initially
unable to locate her. Once the FCM finally made contact with Mother, she tested positive for
marijuana and refused to provide information the FCM needed to investigate the allegations
further. Based on the allegations, Mother’s positive drug screen results, and her refusal to
cooperate, DCS filed a motion to go back to supervised visitation, which was granted.
On December 5, 2012, Mother was arrested for conversion and possession of
marijuana. She remained incarcerated throughout the rest of these proceedings. Father, on
the other hand, apparently made progress over the next few months, and the Children were
placed with him on December 21, 2012. The Children were removed on January 29, 2013,
due to ongoing domestic violence in the home between Father and his wife. Father was
subsequently arrested for domestic violence against his wife on February 14, 2013, and he
4 remained incarcerated until March 27, 2013. As of the date of the termination hearing, the
domestic violence charges had not yet been resolved.
After a long series of continuances, the juvenile court held an evidentiary hearing on
the petitions to terminate on April 19, 2013. Mother appeared at the hearing in custody and
with counsel. Despite being released from jail, Father failed to appear, but counsel appeared
on his behalf. At the hearing, FCM Mary Revolt testified that during the course of the
CHINS and termination proceedings, Mother was offered nineteen drug screens. She refused
or failed to appear for seven and submitted to twelve. Half of the drug screens Mother took
were positive for illegal substances. Additionally, of the approximately two years that passed
since the filing of the initial CHINS petitions, Mother was incarcerated for fifteen months.
During her eight months of freedom, she lived at no fewer than three addresses. Aside from
working for her landlord at one time to help pay for her rent and deposit, Mother was never
employed during these proceedings.
FCM Revolt also testified that since the initial CHINS case was opened, Father was
offered thirty-five drug screens. Father submitted to twenty-eight screens and refused or
failed to appear for seven. Of the twenty-eight screens Father took, only nine were clean or
within therapeutic limits for Father’s prescribed medications. Additionally, Father’s
prescribed medications for his mental health issues did not regularly show up in his drug
screens. Father was incarcerated three times after the CHINS case was opened, and he
moved often when he was not incarcerated, living at five different residences during the
course of the proceedings, often with friends or relatives. Father was never employed during
5 this time period, and he was arrested for domestic violence against his wife shortly before the
termination hearing.
Officer Jamie Brown of the Muncie Police Department’s domestic violence unit also
testified at the termination hearing. Officer Brown testified that on February 14, 2013, she
spoke with Father’s wife, S.D., at the hospital. S.D. had a number of injuries and she told
Officer Brown that she and Father had gotten into an argument and that he had hit her in the
face while they were in a vehicle. S.D. further stated that Father had told S.D.’s brother that
he was going to kill S.D. at a river. On the evening of February 14, Father drove S.D. to a
river, but left because there were people around. They then went to Muncie, where S.D. was
able to get away from Father and get help. S.D. also told Officer Brown that Father had
bloodied her nose on two separate occasions prior to that evening, and that he would take her
phone away and bolt doors to prevent her from escaping.
Aubrey Driscoll, who was the Children’s therapist from June 2011 until August 2012,
also testified at the termination hearing. Driscoll testified that the Children were both
diagnosed with Oppositional Defiant Disorder and displayed troubling sexualized behavior.
She testified further that the Children had one home-based appointment scheduled with her
while they were in Father’s care in August 2011, but when she arrived for the appointment,
Father and the Children were not there. In August 2012, Driscoll transferred the Children to
Denise Weiss, another therapist who specialized in treating children with sexualized
behaviors. Weiss testified at the termination hearing that the Children had been sexually
acting out and that it was imperative for them to be in therapy in order to prevent them from
6 acting out against other children. Weiss testified further that Father did not bring the
Children to the two therapy sessions that were scheduled while they were in his care in
December 2012 and January 2013. At the conclusion of the hearing, the juvenile court took
the matter under advisement. On June 27, 2013, the juvenile court entered orders terminating
the Parents’ rights to the Children. The Parents now appeal. Additional facts will be
provided as necessary.
The juvenile court made detailed findings in its order terminating the Parents’ parental
rights to the Children. Where the juvenile court enters specific findings of fact and
conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of
Family & Children, 839 N.E.2d 143 (Ind. 2005). First, we determine whether the evidence
supports the findings, and second we determine whether the findings support the judgment.
Id. “Findings are clearly erroneous only when the record contains no facts to support them
either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A
judgment is clearly erroneous only if the findings do not support the juvenile court’s
conclusions or the conclusions do not support the judgment thereon. Quillen v. Quillen, 671
N.E.2d 98.
We recognize that the traditional right of parents to “establish a home and raise their
children is protected by the Fourteenth Amendment of the United States Constitution.” In re
M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. Although parental rights are of
constitutional dimension, the law provides for the termination of these rights when parents
are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144
7 (Ind. Ct. App. 2008). In addition, a juvenile court must subordinate the interests of the
parents to those of the child when evaluating the circumstances surrounding the termination.
In re K.S., 750 N.E.2d 832 (Ind. Ct. App. 2001).
Before an involuntary termination of parental rights may occur in Indiana, the State is
required to allege and prove, among other things:
(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 a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services.
Ind. Code Ann. § 31-35-2-4(b)(2)(B) (West, Westlaw current through 2013 1st Reg. Sess. &
1st Reg. Technical Sess.). The State is also required to prove that termination of parental
rights is in the best interests of the child and that there is a satisfactory plan for the care and
treatment of the child. I.C. § 31-35-2-4(b)(2)(C), (D). The State’s burden of proof in
termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257,
1260-61 (Ind. 2009) (quoting Ind. Code Ann. § 31-37-14-2 (West, Westlaw current through
2013 1st Reg. Sess. & 1st Reg. Technical Sess.)). If the court finds that the allegations in a
petition described in section 4 of this chapter are true, the court shall terminate the parent-
child relationship. I.C. § 31-35-2-8 (West, Westlaw current through 2013 1st Reg. Sess. & 1st
Reg. Technical Sess.).
8 The Parents have filed separate briefs on appeal, and they both challenge the juvenile
court’s findings as to subsection (b)(2)(B) of the termination statute cited above. See I.C. §
31-35-2-4(b)(2). We first note DCS needed to establish only one of the three requirements of
subsection (b)(2)(B) by clear and convincing evidence before the juvenile court could
terminate parental rights. See In re L.V.N., 799 N.E.2d 63 (Ind. Ct. App. 2003). Here, the
juvenile court found DCS presented sufficient evidence to satisfy two of those requirements,
namely, that there is a reasonable probability the conditions resulting in the Children’s
removal or continued placement outside the Parents’ care will not be remedied and that the
continuation of the parent-child relationship poses a threat to the Children’s well-being. See
I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our inquiry on the requirements of subsection
(b)(2)(B)(i)—that is, whether there was sufficient evidence to establish a reasonable
probability that the conditions resulting in the Children’s removal or continued placement
outside the Parents’ care will not be remedied.3
In making such a determination, a juvenile court must judge a parent’s fitness to care
for his or her child at the time of the termination hearing, taking into consideration evidence
of changed conditions. In re J.T., 742 N.E.2d 509 (Ind. Ct. App. 2001), trans. denied. The
court must also evaluate the parent’s habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation of the child. In re M.M., 733
N.E.2d 6 (Ind. Ct. App. 2000). Similarly, courts may consider evidence of a parent’s prior
3 Accordingly, we need not address the Parent’s arguments with respect to the juvenile court’s finding that there was a reasonable probability that continuation of the parent-child relationship poses a threat to the Children’s well-being.
9 criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and
lack of adequate housing and employment. A.F. v. Marion Cnty. Office of Family &
Children, 762 N.E.2d 1244 (Ind. Ct. App. 2002), trans. denied. Moreover, where a parent’s
“pattern of conduct shows no overall progress, the court might reasonably find that under the
circumstances, the problematic situation will not improve.” In re A.H., 832 N.E.2d 563, 570
(Ind. Ct. App. 2005).
In her brief, Mother attempts to analogize In re E.S., 762 N.E.2d 1287 (Ind. Ct. App.
2002), in which this court reversed the juvenile court’s finding that the conditions that
resulted in the child’s removal and continued placement outside the mother’s care would not
be remedied. The facts of In re E.S. are not at all comparable to those at issue here. In that
case, the mother was not offered services, but voluntarily sought assistance on her own, and
DCS did not evaluate her progress in counseling. Here, however, Mother was offered
services during the eight months she was not incarcerated. Specifically, she was offered drug
screens and home-based services, and she participated in supervised visitation. To the extent
Mother claims she should have been offered additional services, we again note that she was
incarcerated for the majority of the proceedings. Thus, it was Mother’s own criminal
behavior and resulting incarceration that made it impossible for her to receive much more in
the way of reunification services. In any event, this court has noted that “the provision of
family services is not a requisite element of our parental rights termination statute, and thus,
even a complete failure to provide services would not serve to negate a necessary element of
the termination statute and require reversal.” In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App.
10 2000).
It is apparent based on the evidence presented at the termination hearing that Mother
has a long pattern of criminal activity, spanning at least eight years and encompassing
multiple felony convictions. Mother testified at the termination hearing that prior to the
opening of the CHINS case, the Children had gone to live with Father because she was
incarcerated. Approximately two weeks after the Children were placed in her custody after
the initial CHINS filing in April 2011, Mother was again incarcerated for Drug Court
violations and the Children were sent to foster care. In December 2012, Mother was again
arrested, this time for conversion and possession of marijuana, and she remained incarcerated
at the time of the termination hearing. Although Mother was scheduled to be released in May
2013, her consistent pattern of criminal behavior and incarceration support a conclusion that
she is very likely to reoffend. Moreover, Mother repeatedly tested positive for illegal drugs
throughout the CHINS and termination proceedings and she was uncooperative with FCM
Revolt’s attempts to investigate allegations of drug use in her home. Under the facts and
circumstances presented here, we cannot say that the juvenile court’s finding that the
conditions that resulted in the Children’s removal and continued placement outside Mother’s
care would not be remedied was clearly erroneous.
In his brief, Father argues that the juvenile court’s ultimate finding that the conditions
that resulted in the Children’s removal and continued placement outside his care would not
be remedied was clearly erroneous because the court did not give sufficient consideration to
certain evidence in his favor. Father’s argument in this regard is simply a request to reweigh
11 the evidence, which we will not do on appeal. Father also notes that he failed to appear at the
termination hearing and the juvenile court denied his counsel’s motion for continuance.4
According to Father, he was therefore “not given the opportunity to respond to” the
allegations of domestic violence against S.D. Father’s Brief at 14. Father makes no
argument that he did not receive notice of the hearing, and the record indicates that he was
not incarcerated at the time. Father’s failure to appear as ordered for the hearing simply does
not amount to denial of an opportunity to be heard.
The evidence presented at the termination hearing establishes that Father tested
positive for illicit drugs and negative for his prescribed medications on a regular basis.
Father was incarcerated three times during the pendency of the termination and underlying
CHINS proceedings. Additionally, the Children were twice placed back in his care, and both
times were removed shortly thereafter. The first time, the Children were with Father for a
little over two weeks before he suffered a nervous breakdown and was admitted to the
hospital for treatment. At that time, Father left the Children with an unauthorized caregiver
without notifying DCS. The Children were placed back in Father’s care on December 21,
2012, and they were removed a little more than a month later due to reports of domestic
violence in Father’s household. After the Children were removed, Father was arrested for
another domestic violence incident against S.D. Those charges had not yet been resolved at
the time of the termination hearing. Moreover, Father missed every therapy session that was
scheduled for the Children while they were in his care. In short, Father was given more than
4 Father makes no argument that the denial of his motion for a continuance was an abuse of discretion.
12 one opportunity to parent the Children, and each time demonstrated that he was unable to do
so adequately. In light of Father’s continuing drug use, his failure to regularly take
medications prescribed to treat his serious mental illness, his failure to ensure that the
Children got the therapy they needed, and his ongoing domestic violence toward S.D., we
cannot say that the juvenile court’s conclusion that the conditions that led to the Children’s
removal and continued placement outside his care would not be remedied was clearly
erroneous.
Finally, both Mother and Father appear to argue that the juvenile court’s conclusion
that termination was in the Children’s best interest was clearly erroneous. In determining
whether termination of parental rights is in the best interests of a child, the juvenile court is
required to look beyond the factors identified by DCS and consider the totality of the
evidence. In re J.C., 994 N.E.2d 2778 (Ind. Ct. App. 2013). “A parent’s historical inability
to provide adequate housing, stability and supervision coupled with a current inability to
provide the same will support a finding that termination of the parent-child relationship is in
the child’s best interests.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 374
(Ind. Ct. App. 2006), trans. denied. “Additionally, a child’s need for permanency is an
important consideration in determining the best interests of a child, and the testimony of the
service providers may support a finding that termination is in the child’s best interests.” In re
A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).
Mother attempts to analogize her situation to the one presented in In re G.Y., 904
N.E.2d 1257, in which our Supreme Court held that the juvenile court’s conclusion that
13 termination was in the child’s best interests was clearly erroneous. The facts of that case do
not resemble those before us. In In re G.Y., the mother was incarcerated one time during the
proceedings for a crime she committed prior to the child’s conception. Here, Mother was
incarcerated twice during the proceedings, once for Drug Court violations and once for new
offenses. Moreover, while Mother was not incarcerated, she repeatedly tested positive for
illegal drugs and was uncooperative with FCM Revolt’s attempts to investigate allegations of
drug use in her home. Unlike the mother in In re G.Y., Mother has demonstrated a
longstanding pattern of criminal behavior that parenthood has not curtailed. Indeed, even the
termination of her parental rights to her three eldest children has not dissuaded Mother from
engaging in such behavior. This court has repeatedly recognized that “[i]ndividuals who
pursue criminal activity run the risk of being denied the opportunity to develop positive and
meaningful relationships with their children.” See, e.g., Castro v. State Office of Family &
Children, 842 N.E.2d at 375.
FCM Revolt testified that she believed termination of parental rights was in the
Children’s best interests because of the repeated incarcerations of both Parents, their drug use
and lack of stable housing, and the domestic violence in Father’s home. Likewise, the
Children’s Court Appointed Special Advocate opined that termination was in the Children’s
best interests for the same reasons. In light of the evidence presented in this case, we cannot
conclude that the juvenile court’s finding that termination of the Parents’ parental rights was
clearly erroneous.
This court will reverse a termination of parental rights “only upon a showing of ‘clear
14 error’– that which leaves us with a definite and firm conviction that a mistake has been
made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly v. Blackford
Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find no such error
here.
Judgment affirmed.
KIRSCH, J., and BAILEY, J., concur.