In re the Termination of the Parent-Child Relationship of D.R., La.R., K.R., and Ly.R., (Minor Children) and N.R. (Father), N.R. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 12, 2019
• Docket: 19A-JT-1124
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 12 2019, 10:11 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the December 12, 2019 Parent-Child Relationship of Court of Appeals Case No. D.R., La.R., K.R., and Ly.R., 19A-JT-1124 (Minor Children) Appeal from the and N.R. (Father) Orange Circuit Court N.R. (Father) The Honorable Steven L. Owen, Judge Appellant-Respondent, Trial Court Cause Nos. v. 59C01-1705-JT-139 59C01-1705-JT-140 59C01-1705-JT-141 Indiana Department of Child 59C01-1705-JT-142 Services, Appellee-Petitioner

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 1 of 12 Case Summary [1] N.R. (“Father”) appeals the termination of his parental rights to his four sons.

We affirm.

Facts and Procedural History [2] The facts that follow are taken primarily from the trial court’s findings of fact,

none of which Father challenges on appeal.1 In 2005, Father was charged with

Class B felony sexual misconduct with a minor in Crawford County. See

13C01-0506-FB-8. He was later convicted and required to register as a sex or

violent offender for life. See Tr. Vol. II p. 240.

[3] Father and N.C. (“Mother”) (collectively, “Parents”) were married in 2008.

During the marriage, Parents had four boys: twins, D.R. and La.R., born in

2008; K.R., born in 2012; and Ly.R., born in 2013 (collectively, “Children”).

In the beginning of the marriage, Mother was Children’s primary caretaker

while Father worked outside of the home. Later, Father became Children’s

primary caretaker while Mother worked outside of the home. Father admits

that he used methamphetamine and “pills” while caring for Children. See

Appellant’s Br. p. 9.

1 Because Father does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 2 of 12 [4] In May 2015, Father was charged with Class A misdemeanor theft and Class A

misdemeanor possession of a controlled substance. See 59D01-1505-CM-435.

Then in July, the Department of Child Services (DCS) received a report that

two-year-old Ly.R. arrived at an emergency room with a large laceration on his

palm and was “covered in human bite marks,” “bruises,” and “several

scratches.” Tr. Vol. II p. 121. Family Case Manager (FCM) Gina McDonald

investigated and after seeing Ly.R. in the emergency room went to the family’s

house with police officers. FCM McDonald saw that there were piles of clothes

and trash throughout the house, several layers of wallpaper had been ripped off,

and pieces of linoleum were missing from the floor. FCM McDonald found

that there was one torn mattress in the living room where everyone slept,

Children were dirty, and one had a bite mark on his arm. While FCM

McDonald was investigating the house, the police found that Parents had

outstanding warrants. Parents were then arrested, and Children were detained

and placed in foster care.

[5] DCS opened an Informal Adjustment (IA) to provide the family services, and

Children were returned to Parents. Parents were provided a home-based case

worker to help them with the conditions of their house. Mother helped clean

and organize the house, but Father did not participate in the cleaning and

organizing process. The family also received DCS vouchers to get furniture,

such as dressers and beds, but out of all the furniture they received Parents only

assembled a set of bunk beds.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 3 of 12 [6] In August, Father was charged with two counts of Level 6 felony unlawful

possession or use of a legend drug and two counts of Class A misdemeanor

possession of a controlled substance. See 10C02-1509-F6-1330. Children were

with Father when he was arrested. See Tr. Vol. II p. 108. Then in September,

Father was charged with Level 4 felony child molesting, fondling, or touching

with a child under 14; Level 5 felony battery causing bodily injury to a person

less than 14 years old; and Level 6 felony battery. The victim was a friend of

Father’s stepdaughter (Mother’s daughter from a prior relationship). See

59C01-1509-F1-883. He later pled guilty to the two battery charges, and the

child-molesting charge and the August possession-of-drug charges were

dismissed. Although Father’s child-molesting charge was dismissed, DCS

substantiated those allegations against Father. Father admits that the incident

occurred in the family home while Children were present. See Tr. Vol. II p.

112.

[7] On September 18, Children were removed from Parents’ care due to allegations

concerning Father’s criminal behavior, Parents’ failure to comply with services

provided through the IA, “deplorable home conditions,” failure to provide

Children with proper medical care, and sexual abuse. Appellant’s App. Vol. II

p. 119. Three days later, DCS filed petitions alleging Children were in need of

services (CHINS) due to those allegations.

[8] A fact-finding hearing on the CHINS petitions was held in January 2016. At

the time of the hearing, Father was incarcerated. The trial court found that

Children were CHINS and ordered that they continue to be detained. In April,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 4 of 12 following a dispositional hearing, the trial court ordered that Parents participate

in services. The court also ordered that Parents keep in contact with DCS,

communicate any criminal charges, obey the law, and obtain and maintain a

legal and stable source of income and housing.

[9] Father was incarcerated in either local jails or the Indiana Department of

Correction (DOC) for the majority of time from September 2015 to January

2019. For instance, in September 2016, Father was arrested for violating his

probation for failure to register as a sex or violent offender. See 13C01-1310-

FD-78. Father’s probation was revoked, and he was, once again, incarcerated.

[10] Meanwhile, Children had been placed in foster care with D.A. and her family

since they were removed in September 2015. When Children first arrived at

their foster family’s house, they were “almost feral.” Tr. Vol. II p. 214. They

were “covered in bite marks from head to toe” and lacked communication and

social skills. Id. at 218-20. Children would throw food at each other and bite

each other, and D.R. would “make sexual acts” toward his siblings. Id. at 213.

[11] In May 2017, DCS filed petitions to terminate Parents’ parental rights to

Children. In November 2018, Parents divorced. After numerous continuances,

a fact-finding hearing on the termination petitions was held in April 2019. At

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 5 of 12 the beginning of the hearing, Mother informed the court that she consented to

adoption.2 See id. at 55-56.

[12] FCM Gina McDonald testified that she investigated the family’s living

conditions in July 2015 and found that the home was in disarray. See id. at 131.

Parents’ home-based case worker, Karen Howson, testified that she began

working with the family in June 2015. Case worker Howson said that she went

to the family’s house on a weekly basis and never saw Father “doing the pick-

up” or “cleaning.” Id. at 143. FCM Kimberly Fletcher testified that she

investigated the allegations concerning neglect or abuse of Children in

September 2015. FCM Fletcher said that when she arrived at the family’s

house, the living conditions were “below our minimum standards.” Id. at 153.

FCM Fletcher explained that there “was trash littering the floor, . . . their

clothes, shoes, various home items [were] everywhere.” Id. Regarding the

allegations of Father’s sexual abuse, FCM Fletcher said that “some of the

details the victims [sic] had given, . . . like the bedding . . . matched the

description.” Id. FCM Supervisor Casey Newton testified that before Father

was arrested in September 2015, he was not engaged in services provided

through the IA. See id. at 166. Supervisor Newton said that adoption is the best

permanency plan for Children and that their current foster parents want to

adopt Children. See id. at 166-67. Another FCM Supervisor, Crystal Noble,

2 Because Mother consented to adoption, she does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 6 of 12 testified that she believes that termination of Father’s parental rights is in

Children’s best interests. See id. at 180. Supervisor Noble said that she is

concerned because DCS had “substantiated against [Father] for sexual abuse”

of a child that was staying at the home with his stepdaughter. Id. at 183.

[13] Joanna Adams, who was employed by Associates in Counseling and

Psychotherapies, testified that she works with Children to have appropriate

behavior. See id. at 194. Adams said that she works with Children to address

“anger . . . lashing out, hitting, name calling, [and] saying some pretty hateful

things to one another.” Id. Adams stated that permanency is important for

Children because “for them it’s very difficult . . . to absorb any major changes . .

. they don’t understand how to comprehend the information and they act out

and they are violent and mean.” Id. at 196. Children’s foster mom, D.A.,

testified that when Children arrived at her house, K.R. and Ly.R. “just talked in

grunts and growls and screams.” Id. at 203. D.A. said that since Children have

been with her family, they are now developmentally on target. See id. D.A.

also explained that when Children first arrived, they showed behaviors that

indicated they had a “lack of attachment” and that D.R. showed some “sexual

acting out,” which she worked with a therapist to address. Id. at 214. D.A.

testified that her family wants to adopt Children if they became available for

adoption. See id. at 204. Court Appointed Special Advocate (CASA) Director

Robin Brown testified that she was appointed as Children’s CASA in July 2018.

CASA Brown said that she believes that termination of Father’s parental rights

is in Children’s best interests. See id. at 226. CASA Brown stated that the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 7 of 12 “twins [D.R. and La.R.] are really very adamant about not wanting contact”

with Father. Id. at 227. In June 2019, the trial court issued its order

terminating Father’s parental rights.

[14] Father now appeals.

Discussion and Decision [15] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.

2013). Rather, we consider only the evidence and reasonable inferences that

are most favorable to the judgment of the trial court. Id. When a trial court has

entered findings of fact and conclusions of law, we will not set aside the trial

court’s findings or judgment unless clearly erroneous. Id. To determine

whether a judgment terminating parental rights is clearly erroneous, we review

whether the evidence supports the trial court’s findings and whether the

findings support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).

[16] A petition to terminate parental rights must allege, 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.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 8 of 12 (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.

Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court

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

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

[17] Father first contends that there is insufficient evidence to support the trial

court’s conclusion that the conditions resulting in Children’s removal will not

be remedied. In determining whether the conditions that resulted in a child’s

removal will not be remedied, the trial court engages in a two-step analysis.

First, the trial court must ascertain what conditions led to the child’s placement

and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial

court determines whether there is a reasonable probability that those conditions

will not be remedied. Id. “The trial court must consider a parent’s habitual

pattern of conduct to determine whether there is a substantial probability of

future neglect or deprivation.” Id.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 9 of 12 [18] Here, Father argues that the trial court’s “findings focus on historical failures”

and therefore the trial court “did not assess the Father’s ability to parent the

children at the time of the termination hearing.” Appellant’s Br. p. 21. The

evidence shows that Father did not participate in cleaning or organizing the

home and did not provide for Children’s needs. Therefore, the trial court found

that “Father ignored the services offered to him through DCS.” Appellant’s

App. Vol. II p. 120. Moreover, the evidence shows that Father used

methamphetamine before his arrest in September 2015 and that while the IA

was in place, Father was charged with numerous offenses including child

molesting and battery on a person less than fourteen years old. See 59C01-1509-

F1-883. The trial court found that Father “engaged in . . . criminal acts even

when [he] knew or should have known that DCS was closely monitoring [his]

behavior.” Id. It is true that by the termination hearing, Father had been out of

incarceration for three months, but the trial court was well within its discretion

to weigh more heavily Father’s history of being in and out of jail for the past

three-and-a-half years. See In re K.T.K., 989 N.E.2d at 1234. Accordingly, the

trial court did not err when it concluded that there is a reasonable probability

that the conditions resulting in Children’s removal and continued placement

outside the home will not be remedied.3

3 Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that resulted in Children’s removal will not be remedied, we do not address its alternate conclusion that there is a reasonable probability that the continuation of the parent-child relationships pose a threat to the well-being of Children. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2) is

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 10 of 12 [19] Father also contends that the trial court erred in concluding that termination is

in Children’s best interests. To determine what is in the child’s best interests,

the trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d

1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must

subordinate the interests of the parents to those of the child. Id. The trial court

need not wait until the child is irreversibly harmed before terminating the

parent-child relationship. Id. Moreover, we have previously held that the

recommendation by both the case manager and child advocate to terminate

parental rights, in addition to evidence that the conditions resulting in removal

will not be remedied, is sufficient to show by clear and convincing evidence that

termination is in the child’s best interests. Id. at 1158-59.

[20] Here, FCM Supervisors Newton and Noble along with CASA Brown all

testified that terminating Father’s parental rights is in Children’s best interests.

See Tr. Vol. II pp. 166, 180, 226. Furthermore, the trial court found that

“[b]efore removal, [Children] were abused, ignored, and mistreated” and that

“[s]ince removal from [Parents] in September 2015, [Children] are doing one

thousand (1000) percent better.” Appellant’s App. Vol. II p. 121. Furthermore,

the trial court concluded that Children “have progressed well in placement with

[D.A. and her family]; that [Children] are thriving in that placement; that

[Children’s] needs are met by the Foster Parents; and that [Children] are

written in the disjunctive and requires the trial court to find only one of the two requirements of subsection (b) has been established by clear and convincing evidence), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 11 of 12 bonded to the [Foster Parents].” Id.; see In re K.T.K., 989 N.E.2d at 1230

(finding that “children have an interest in terminating parental rights that

prevent adoption and inhibit establishing secure, stable, long-term, continuous

relationships.”). Meanwhile, Father has been in and out of jail for the past

three-and-a-half years. Finally, Adams testified that permanency is important

for Children because “for them it’s very difficult . . . to absorb any major

changes . . . they don’t understand how to comprehend the information and

they act out and they are violent and mean.” Tr. Vol. II p. 196; see In re A.D.S.,

987 N.E.2d at 1159 (“permanency is a central consideration in determining the

best interests of a child”). Therefore, the trial court did not err when it

determined that termination is in Children’s best interests.

[21] Affirmed.

Riley, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1124 | December 12, 2019 Page 12 of 12