MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 15 2017, 9:41 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 Michael J. Kyle Curtis T. Hill, Jr. Baldwin Kyle & Kamish Attorney General of Indiana Franklin, Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the February 15, 2017 Parent-Child Relationship of: Court of Appeals Case No. N.D. (Minor Child) 41A01-1605-JT-1036 and Appeal from the Johnson Circuit Court J.D. (Father), The Honorable K. Mark Loyd, Appellant-Respondent, Judge
v. The Honorable Andrew Roesener, Magistrate
The Indiana Department of Trial Court Cause No. 41C01-1510-JT-20 Child Services, Appellee-Petitioner.
Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 1 of 7 Case Summary and Issue [1] J.D. (“Father”) appeals the juvenile court’s termination of his parental rights to
his child N.D. (“Child”), raising the sole restated issue of whether the juvenile
court’s termination order is supported by clear and convincing evidence.
Concluding the termination order is not clearly erroneous, we affirm.
Facts and Procedural History [2] Child was born on August 31, 2012.1 In May 2014, the Indiana Department of
Child Services (“DCS”) received a report from Child’s family members who felt
Father endangered Child’s well-being. Father is mentally ill and family
members became concerned with his erratic and aggressive behavior. On May
29, 2014, DCS filed a petition alleging Child was a child in need of services
(“CHINS”) due to Father’s behavior and the juvenile court ordered Child be
removed from Father’s care. Father later admitted the allegations set forth in
DCS’ petition and the juvenile court adjudicated Child as a CHINS. Father
agreed to certain dispositional goals, including participation in home-based case
management, exercising regular parenting time, and a mental health
assessment. Child’s permanency plan was a concurrent plan of reunification
and adoption.
1 Child’s mother previously consented to Child’s adoption and is not a party to this appeal.
Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 2 of 7 [3] On December 2, 2014, Father underwent a psychological evaluation with Dr.
Linda McIntire. As a part of the evaluation, Father submitted answers for a
Child Abuse Potential Inventory and the results showed Father is at an
extremely high risk of abusing children. In addition, Father was diagnosed
with several disorders, including Schizoaffective Disorder, Borderline
Intellectual Functioning, and Adult Antisocial Behavior. Dr. McIntire
recommended Father participate in a partial hospitalization program providing
intensive oversight, regularly consult a psychiatrist and follow all
recommendations, abstain from illicit drugs, abstain from contacting Child, and
participate in case management and parenting education services. Father did
not complete his dispositional goals. On April 12, 2016, the juvenile court
entered its findings of fact and conclusions thereon terminating Father’s
parental rights. This appeal ensued. Additional facts will be added as
necessary.
Discussion and Decision I. Standard of Review [4] When we review a termination of parental rights, we neither weigh the
evidence nor judge witness credibility and we consider only the evidence and
reasonable inferences most favorable to the judgment. In re C.G., 954 N.E.2d
910, 923 (Ind. 2011). Where, as here, the juvenile court entered findings of fact
and conclusions, we apply a two-tiered standard of review: we first determine
whether the evidence supports the findings and then determine whether the
Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 3 of 7 findings support the judgment. Id. “We will set aside the court’s judgment
terminating a parent-child relationship only if it is clearly erroneous. Clear
error is that which leaves us with a definite and firm conviction that a mistake
has been made.” S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123 (Ind.
Ct. App. 2013) (citation omitted).
II. Termination Order [5] Father argues the juvenile court clearly erred in terminating his parental rights.
Specifically, he claims his failure to complete his dispositional goals was due to
DCS not providing the proper services to allow him to reunify with Child and
therefore DCS failed to present clear and convincing evidence establishing a
reasonable probability the conditions resulting in Child’s removal will not be
remedied.2 The crux of Father’s position is Dr. McIntire recommended he
participate in a partial hospitalization program, which he claims was impossible
to complete due to DCS’ inability to offer such a service. Father’s argument
fails.
[6] “[T]he involuntary termination of parental rights is an extreme measure that is
designed to be used as a last resort when all other reasonable efforts have failed
. . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)
2 The State first asserts Father has waived his argument for failing to present a cogent argument. Although Father does not cite to any legal authority directly supporting his position, we conclude Father’s argument is sufficient for us to address the issue on appeal. We take this opportunity, however, to address the State’s brief. The brief would be more effective if the State focused its arguments on the dispositive issues presented to the court instead of dedicating significant time detailing the shortcomings of Father’s brief.
Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 4 of 7 (citation omitted). Indiana Code section 31-35-2-4(b)(2) sets out what must be
proven in order to terminate parental rights, which we provide 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.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child[; and]
***
(C) that termination is in the best interests of the child. . . .
The State must prove each element by clear and convincing evidence. Ind.
Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile
court determines the allegations of the petition are true, then the court shall
terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[7] At the outset, we note Father’s argument appears to only question whether
DCS’ efforts to reunify Father with Child were reasonable. Indiana Code
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 15 2017, 9:41 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 Michael J. Kyle Curtis T. Hill, Jr. Baldwin Kyle & Kamish Attorney General of Indiana Franklin, Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the February 15, 2017 Parent-Child Relationship of: Court of Appeals Case No. N.D. (Minor Child) 41A01-1605-JT-1036 and Appeal from the Johnson Circuit Court J.D. (Father), The Honorable K. Mark Loyd, Appellant-Respondent, Judge
v. The Honorable Andrew Roesener, Magistrate
The Indiana Department of Trial Court Cause No. 41C01-1510-JT-20 Child Services, Appellee-Petitioner.
Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 1 of 7 Case Summary and Issue [1] J.D. (“Father”) appeals the juvenile court’s termination of his parental rights to
his child N.D. (“Child”), raising the sole restated issue of whether the juvenile
court’s termination order is supported by clear and convincing evidence.
Concluding the termination order is not clearly erroneous, we affirm.
Facts and Procedural History [2] Child was born on August 31, 2012.1 In May 2014, the Indiana Department of
Child Services (“DCS”) received a report from Child’s family members who felt
Father endangered Child’s well-being. Father is mentally ill and family
members became concerned with his erratic and aggressive behavior. On May
29, 2014, DCS filed a petition alleging Child was a child in need of services
(“CHINS”) due to Father’s behavior and the juvenile court ordered Child be
removed from Father’s care. Father later admitted the allegations set forth in
DCS’ petition and the juvenile court adjudicated Child as a CHINS. Father
agreed to certain dispositional goals, including participation in home-based case
management, exercising regular parenting time, and a mental health
assessment. Child’s permanency plan was a concurrent plan of reunification
and adoption.
1 Child’s mother previously consented to Child’s adoption and is not a party to this appeal.
Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 2 of 7 [3] On December 2, 2014, Father underwent a psychological evaluation with Dr.
Linda McIntire. As a part of the evaluation, Father submitted answers for a
Child Abuse Potential Inventory and the results showed Father is at an
extremely high risk of abusing children. In addition, Father was diagnosed
with several disorders, including Schizoaffective Disorder, Borderline
Intellectual Functioning, and Adult Antisocial Behavior. Dr. McIntire
recommended Father participate in a partial hospitalization program providing
intensive oversight, regularly consult a psychiatrist and follow all
recommendations, abstain from illicit drugs, abstain from contacting Child, and
participate in case management and parenting education services. Father did
not complete his dispositional goals. On April 12, 2016, the juvenile court
entered its findings of fact and conclusions thereon terminating Father’s
parental rights. This appeal ensued. Additional facts will be added as
necessary.
Discussion and Decision I. Standard of Review [4] When we review a termination of parental rights, we neither weigh the
evidence nor judge witness credibility and we consider only the evidence and
reasonable inferences most favorable to the judgment. In re C.G., 954 N.E.2d
910, 923 (Ind. 2011). Where, as here, the juvenile court entered findings of fact
and conclusions, we apply a two-tiered standard of review: we first determine
whether the evidence supports the findings and then determine whether the
Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 3 of 7 findings support the judgment. Id. “We will set aside the court’s judgment
terminating a parent-child relationship only if it is clearly erroneous. Clear
error is that which leaves us with a definite and firm conviction that a mistake
has been made.” S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123 (Ind.
Ct. App. 2013) (citation omitted).
II. Termination Order [5] Father argues the juvenile court clearly erred in terminating his parental rights.
Specifically, he claims his failure to complete his dispositional goals was due to
DCS not providing the proper services to allow him to reunify with Child and
therefore DCS failed to present clear and convincing evidence establishing a
reasonable probability the conditions resulting in Child’s removal will not be
remedied.2 The crux of Father’s position is Dr. McIntire recommended he
participate in a partial hospitalization program, which he claims was impossible
to complete due to DCS’ inability to offer such a service. Father’s argument
fails.
[6] “[T]he involuntary termination of parental rights is an extreme measure that is
designed to be used as a last resort when all other reasonable efforts have failed
. . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)
2 The State first asserts Father has waived his argument for failing to present a cogent argument. Although Father does not cite to any legal authority directly supporting his position, we conclude Father’s argument is sufficient for us to address the issue on appeal. We take this opportunity, however, to address the State’s brief. The brief would be more effective if the State focused its arguments on the dispositive issues presented to the court instead of dedicating significant time detailing the shortcomings of Father’s brief.
Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 4 of 7 (citation omitted). Indiana Code section 31-35-2-4(b)(2) sets out what must be
proven in order to terminate parental rights, which we provide 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.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child[; and]
***
(C) that termination is in the best interests of the child. . . .
The State must prove each element by clear and convincing evidence. Ind.
Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile
court determines the allegations of the petition are true, then the court shall
terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[7] At the outset, we note Father’s argument appears to only question whether
DCS’ efforts to reunify Father with Child were reasonable. Indiana Code
section 31-34-21-5.5 makes clear DCS is generally required to make reasonable
efforts to preserve and reunify families during CHINS proceedings. However, this
“CHINS provision is not a requisite element of our parental rights termination
statute, and a failure to provide services,” reasonable or not, “does not serve as
a basis on which to directly attack a termination order as contrary to law.” In re Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 5 of 7 H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (addressing a father’s
argument following termination of his parental rights that he was unable to
participate in services because the county jails where he was incarcerated did
not offer those services).
[8] Nonetheless, we note Father was to complete a mental health assessment and
follow all recommendations. Following a psychological evaluation, Dr.
McIntire recommended Father participate in a partial hospitalization program
and other services. There is no dispute DCS did not have a contract with a
provider who could offer Father a partial hospitalization program. Rather than
completely give up on providing Father with this service, DCS determined
Father could be provided this service if he applied for and received Medicaid.
DCS informed Father of this and encouraged him to fill out the necessary
documentation, but Father failed to do so. We see no shortcoming in DCS’
provision of services and conclude the State presented sufficient evidence to
establish a reasonable probability the conditions leading to Child’s removal will
not be remedied.3
[9] We further note Father does not challenge any of the remaining portions of the
juvenile court’s order. Nonetheless, Indiana Code section 31-35-2-4(b)(2)(B) is
3 We further note, even if we were to ignore the juvenile court’s finding Father failed to participate in a partial hospitalization program, the juvenile court’s findings establish Father did not take appropriate steps to remedy his mental health issues. As the juvenile court found, “the bulk, if not the entirety, of the evidence establishes Father has essentially done nothing that has been asked of him . . . .” Appellant’s Appendix, Volume II, at 19.
Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 6 of 7 written in the disjunctive and requires only one element in that subsection to be
proven to support termination of parental rights. See In re I.A., 903 N.E.2d 146,
153 (Ind. Ct. App. 2009). Even assuming the State failed to prove a reasonable
probability the conditions resulting in in Child’s removal will not be remedied,
the juvenile court’s findings and record establish a reasonable probability the
continuation of the parent-child relationship poses a threat to Child’s well-
being. See Ind. Code § 31-35-2-4(b)(2)(B)(ii). For this reason as well, the
juvenile court’s termination order is supported by clear and convincing
evidence. We conclude the State proved the allegations set forth in its petition
and the trial court did not clearly err in terminating Father’s parental rights.
Conclusion [10] DCS established by clear and convincing evidence the elements necessary to
support the termination of Father’s parental rights. The judgment of the
juvenile court terminating Father’s parental rights is affirmed.
[11] Affirmed.
Kirsch, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017 Page 7 of 7