In re the Termination of the Parent-Child Relationship of Ch.W and Ca. W. (Minor Children) and M.W. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 23, 2020
• Docket: 19A-JT-2040
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 23 2020, 10:13 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana – Appellate Division Robert J. Henke Steven J. Halbert Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the March 23, 2020 Parent-Child Relationship of Court of Appeals Case No. Ch.W and Ca. W. (Minor 19A-JT-2040 Children) and Appeal from the Marion Superior M.W. (Father), Court The Honorable Mark A. Jones, Appellants-Respondents, Judge v. The Honorable Peter Haughan, Magistrate Indiana Department of Child Trial Court Cause Nos. Services,1 49D15-1811-JT-1327 49D15-1811-JT-1328

1 Child Advocates, Inc., Appellee/Guardian ad Litem, did not file an appearance or otherwise participate on appeal. However, pursuant to Ind. Appellate Rule 17(A), “[a] party of record in the trial court . . . shall be a party on appeal.”

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2040 | March 23, 2020 Page 1 of 10 Appellee-Petitioner.

Mathias, Judge.

[1] The Marion Superior Court entered an order terminating the parental rights of

M.W. (“Father”) to his minor children Ch.W. (“Son”) and Ca.W.

(“Daughter”). Father appeals and presents one issue for our review, which we

restate as whether the trial court’s order terminating Father’s parental rights is

contrary to the termination statute and precedent interpreting this statute.

[2] We affirm.

Facts and Procedural History [3] Father and V.N. (“Mother”) (collectively “the Parents”) are the biological

parents of Son, who was born in May 2015, and Daughter, who was born in

December 2016. Mother used methamphetamine and other drugs during her

pregnancy with Daughter, who tested positive at birth for amphetamine,

methamphetamine, marijuana, and morphine. On December 19, 2016, the

Children were removed from the Parents’ care, and the Indiana Department of

Child Services (“DCS”), filed a petition alleging that the Children were children

in need of services (“CHINS”) the following day. The CHINS petition alleged

that Mother was using illicit drugs during her pregnancy and declined to submit

to a drug screen; that Daughter was born with illicit drugs in her system and

was suffering from withdrawal symptoms as a result; and that Father had not

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2040 | March 23, 2020 Page 2 of 10 demonstrated an ability and willingness to appropriately parent the Children or

ensure their safety and well-being while in Mother’s care. Following a CHINS

detention hearing on December 20, the trial court ordered the Children to

remain in foster care.

[4] The trial court held a CHINS fact-finding hearing on April 6, 2017, at which

Mother admitted that the Children were in need of services. Father and DCS

entered into an agreement whereby he waived the right to a fact-finding hearing

if the court approved a home trial visit with Father and if Mother left the family

residence. The trial court accepted this agreement, adjudicated the children as

CHINS, and placed the children on a trial home visit with Father. This trial

placement with Father did not last long. On April 24, 2017, the trial court held

a hearing where it found that Father had committed an act of domestic violence

against Mother in the presence of the Children. The court ordered the Children

removed from Father’s custody and set the matter for a modification hearing.

[5] At the May 18, 2017 modification hearing, the trial court modified the original

dispositional decree and ordered both Parents to complete a domestic violence

assessment and follow all recommendations of the assessment. Father

completed the assessment on May 16, 2018, and the assessment provider

recommended that Father participate in the Batterer’s Intervention Program, a

program with twenty-six sessions. Father only attended one session and was

eventually terminated from the program for non-compliance.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2040 | March 23, 2020 Page 3 of 10 [6] Father was also ordered to participate in twice-weekly visitations with the

Children. Father participated in only five scheduled visits, and he never attended

a full visit. Father’s visits were suspended in February 2019 due to his failure to

attend. Father was not in contact with DCS at all from April 2017 through

November 2018. During this CHINS case, Father was repeatedly incarcerated

due to his failure to pay child support for his other children.2 Father also had no

stable housing, and he was “on the run” for approximately a year as a result of

warrants stemming from his failure to pay child support. Tr. p. 57. Lacking stable

housing, Father stayed at various times with his sister, his friends, and his aunt.

[7] The Children thrived in their pre-adoptive foster care, where they were placed in

October 2018. Son has medical needs that were being ignored by the Parents, but

have been treated in foster care. Parents were aware of Son’s medical needs but

simply did not follow up with medical providers. Son was also diagnosed with

post-traumatic stress, and his symptoms included night terrors, head-banging,

tantrums, and dysregulated emotions. Son’s behavior has improved due to his

treatment while in foster care, and he actively participates in therapy. Since the

Parents’ visits were terminated, Son’s night terrors have abated. Daughter had

speech delays that significantly improved since being placed in foster care.

[8] At a November 15, 2018 permanency hearing, the trial court changed the

permanency plan from reunification with the Parents to adoption. The court

2 Father admitted that he has four other children with whom he has no significant relationship and for whom he does not provide support.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2040 | March 23, 2020 Page 4 of 10 noted that Mother had continued to test positive for illicit drugs and that Father

had had no contact with DCS and had not participated in services.

[9] On November 26, 2018, DCS filed a petition to terminate Father’s parental

rights to the Children. On June 5, 2019, the trial court dismissed Mother from

the termination case, as she had consented to adoption by the foster parents.

The trial court held evidentiary hearings on the termination petitions on May

13 and June 5, 2019. On August 5, 2019, the trial court entered exhaustive

findings of fact and conclusions of law terminating Father’s parental rights to

both Children. Father now appeals.

Termination of Parental Rights [10] Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate

parental rights must allege:

(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; (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.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2040 | March 23, 2020 Page 5 of 10 [11] DCS must prove each element by clear and convincing evidence. Ind. Code §

31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). Because section

4(b)(2)(B) is written in the disjunctive, the trial court is required to find that only

one prong of subsection 4(b)(2)(B) has been established by clear and convincing

evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).

[12] Clear and convincing evidence need not establish that the continued custody of

the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.

Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead

sufficient to show by clear and convincing evidence that the child’s emotional

and physical development are put at risk by the parent’s custody. Id. If the court

finds the allegations in a petition are true, the court shall terminate the parent-

child relationship. Ind. Code § 31-35-2-8(a).

Standard of Review [13] We have long had a highly deferential standard of review in cases involving the

termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

2011). Thus, on appeal, we neither reweigh the evidence nor assess witness

credibility. Id. We consider only the evidence and reasonable inferences

favorable to the trial court’s judgment. Id. In deference to the trial court’s

unique position to assess the evidence, we will set aside a judgment terminating

a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

which leaves us with a definite and firm conviction that a mistake has been

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2040 | March 23, 2020 Page 6 of 10 made. J.M. v. Marion Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.

App. 2004), trans. denied.

[14] In the present case, Father does not challenge any of the trial court’s factual

findings as being clearly erroneous. We therefore accept the trial court’s

findings as true and determine only whether these unchallenged findings are

sufficient to support the judgment. In re S.S., 120 N.E.3d 605, 610 (Ind. Ct.

App. 2019) (citing McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App.

1997); In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans. denied); see

also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012)

(holding that when the trial court’s unchallenged findings support termination,

there is no error), trans. denied.

Discussion and Decision [15] Father argues that the trial court clearly erred by concluding that there was a

reasonable probability that the conditions that led to the Children’s removal

from the Parent’s home would not be remedied. Specifically, Father claims that

the trial court terminated his rights based on his failure to remedy the

conditions of unstable housing and unemployment. Father contends that these

conditions were not the reasons for removal of the Children from his care. This,

he claims, is contrary to Indiana Code 31-35-2-4(b)(2)(B)(i) and the opinions of

our supreme court interpreting this statute. This failure to abide by the statute,

Father argues, “created a fundamentally unfair hearing which violated

[Father]’s due process rights.” Appellant’s Br. at 6.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2040 | March 23, 2020 Page 7 of 10 [16] Father specifically contends that subsection 4(b)(2)(B)(i) applies only to the

conditions that led to the initial removal of a child or children from a parent’s

home. By identifying Father’s unstable housing and unemployment when

determining that there was a reasonable probability that the conditions that

resulted in the Children’s removal would not be remedied, Father claims that

the trial court identified conditions that were not factors in DCS’s initial

decision to remove the Children from the Parents’ care.

[17] Even if we were to agree with Father that the trial court misinterpreted

subsection 4(b)(2)(B)(i) regarding the conditions that led to the Children’s

removal, he does not challenge the trial court’s conclusion, under subsection

4(b)(2)(B)(ii), that there was a reasonable probability that the continuation of

the parent-child relationship poses a threat to the well-being of the child. As

noted above, Section 4(b)(2)(B) is written in the disjunctive, and a trial court is

required to find that only one prong of subsection 4(b)(2)(B) has been

established by clear and convincing evidence. In re A.K., 924 N.E.2d at 220.

Accordingly, even if the trial court did err in concluding that the conditions that

led to the Children’s removal would not be remedied, this does not require

reversal, as the trial court’s judgment is still supported by its unchallenged

findings and conclusions that the continuation of the parent-child relationship

poses a threat to the well-being of the Children.

[18] Even if Father did challenge the trial court’s conclusion that the continuation of

the parent-child relationship poses a threat to the well-being of the Children, he

would not prevail. When reviewing the question of whether continuation of the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2040 | March 23, 2020 Page 8 of 10 parent-child relationship poses a threat to a child’s well-being, the trial court

must consider the parent’s habitual patterns of conduct to determine the

probability of future neglect or deprivation of the child. A.D.S. v. Ind. Dep’t of

Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. The trial

court may consider evidence of a parent’s prior history of neglect, failure to

provide support, and lack of adequate housing and employment. Id. at 1157.

DCS is not required to provide evidence ruling out all possibilities of change. Id.

Instead it needs to establish only that a reasonable probability exists that the

parent’s behavior will not change. Id. Actual physical abuse is not required to

find that there is a reasonable probability that continuation of the parent-child

relationship poses a threat to a child’s well-being, and a court need not wait

until the child suffers permanent psychological or physical injury before

intervening. In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005), trans. denied.

[19] Here, Father committed domestic violence in the presence of the Children. He

was referred to domestic violence services and completed the assessment.

However, he attended only one session of the domestic violence program and

was terminated for non-compliance. He failed to maintain contact with DCS,

and he attended only five visits with the Children. And Son’s post-traumatic

stress symptoms have decreased since visitations were cancelled. Father has

demonstrated a lack of stable housing and stable employment. He was on the run

from authorities and eventually incarcerated as a result of his failure to support

his other children. Under these facts and circumstances, the trial court did not

clearly err in concluding that DCS had established, by clear and convincing

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2040 | March 23, 2020 Page 9 of 10 evidence, that there was a reasonable probability that the continuation of the

parent-child relationship posed a threat to the well-being of the Children.3

Conclusion [20] Father’s argument attacks only the trial court’s determination, under subsection

4(B)(2)(b)(i) of the termination statute, that there was a reasonable probability

that the conditions that led to the Children’s removal from the Parent’s home

would not be remedied. Since subsection 4(B)(2)(b) is written in the disjunctive,

the trial court is required to find that only one prong of this subsection has been

established. Here, the trial court also found, under subsection 4(B)(2)(b)(ii) that

there was a reasonable probability that the continuation of the parent-child

relationship posed a threat to the well-being of the Children. Father does not

challenge this alternative basis for terminating his parental rights, and, even if

he did, the evidence clearly supports the trial court’s conclusion. Accordingly,

Father’s argument on appeal fails, and we affirm the judgment of the trial court.

[21] Affirmed.

Kirsch, J., and Bailey, J., concur.

3 Father argues that the trial court’s alleged deviation from the language of the termination statute violated his due process rights. Because we have concluded that the trial court did not violate the termination statute, Father’s due process argument necessarily fails.

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