In re the Termination of the Parent-Child Relationship of P.R. (Minor Child) and J.R. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 11, 2019
• Docket: 18A-JT-1771
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 11 2019, 10:46 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Nancy A. McCaslin Curtis T. Hill, Jr. McCaslin & McCaslin Attorney General of Indiana Elkhart, Indiana Frances Barrow Robert J. Henke Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the February 11, 2019 Parent-Child Relationship of Court of Appeals Case No. P.R. (Minor Child) and 18A-JT-1771 J.R. (Father), Appeal from the Elkhart Circuit Court Appellant-Respondent, The Honorable Terry C. v. Shewmaker, Senior Judge The Honorable Deborah A. Indiana Department of Child Domine, Magistrate Services, Trial Court Cause No. 20C01-1705-JT-30 Appellee-Petitioner.

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1771 | February 11, 2019 Page 1 of 11 [1] J.R. (“Father”) appeals the Elkhart Circuit Court’s termination of his parental

rights to his daughter, P.R. He argues that the Department of Child Services

(“DCS”) did not prove his parental rights to P.R. should be terminated by clear

and convincing evidence.

[2] We affirm.

Facts and Procedural History [3] On June 13, 2016, DCS filed a petition alleging that the thirteen-year-old child,

P.R., was a child in need of services (“CHINS”). This petition alleged that P.R.

was sexually abused by R.R.’s (“Mother’s) boyfriend, resulting in P.R.’s

pregnancy, and that Mother was unable to provide a stable home for P.R. At

the initial hearing, Mother admitted that P.R. was a CHINS. Father appeared

at the initial hearing, stating that he had had limited contact with P.R. since

2005, and did not have any personal knowledge of what occurred in Mother’s

home. Pursuant to the dispositional order in the CHINS matter dated July 13,

2016, the child was placed in kinship care. Also in accordance with the

dispositional order, Father was to have supervised visitation with P.R.

Approximately four months later, in a progress report dated November 7, DCS

reported that Father had not yet contacted DCS to set up visits with the child.

[4] DCS filed a petition to terminate parental rights on May 22, 2017. The court

held a hearing on this petition on September 1, 2017, at which Mother

voluntarily relinquished her parental rights. Father did not appear for this

hearing, and his rights were terminated. Father filed an appeal on September

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1771 | February 11, 2019 Page 2 of 11 29, 2017. On the first appeal, DCS acknowledged that Father was not provided

with notice of the termination hearing, and this court remanded the matter to

the trial court for further proceedings. A second termination hearing was held

on June 26, 2018. At this second termination hearing regarding Father’s

parental rights, the ongoing family case manager (“FCM”) Laura Stapleton, the

Court Appointed Special Advocate (“CASA”) Cheryl Koester, P.R.’s therapist,

Jacyln Clem (“Clem”), and Father testified.

[5] FCM Stapleton testified that she had been an ongoing case manager for DCS

for approximately six years. She was assigned to the matter after removal and

has been P.R.’s only ongoing case manager. She testified that P.R. was not

initially placed with Father in spite of his status as the non-offending parent

because he was homeless and registered on the sex offender registry as a “sexual

violent perpetrator.” Tr. p. 13. She further testified that P.R., a teenager, had

been “very verbal about wanting her parent’s [sic] rights terminated.” Tr. p. 15.

Her understanding was that P.R. did not want any contact with her Father. She

observed P.R. to be happy in her foster home and that P.R. had told her that

P.R. wanted her home to be her forever home. She believed that, given P.R.’s

diagnoses of Post Traumatic Stress Disorder (“PTSD”) and Reactive

Attachment Disorder (“RAD”) and the lack of bond between Father and P.R.,

Father would not be able to meet P.R.’s treatment needs. She was further

concerned about Father’s lack of a stable home. When FCM Stapleton told

P.R. that Father had “kind of, come back into the picture and has been wanting

to obtain, or have a relationship with her,” P.R. indicated that she did not want

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1771 | February 11, 2019 Page 3 of 11 to see Father. Tr. p. 22. P.R. did, however, have a “good-bye” visit with Father.

Tr. p. 30. The FCM understood that P.R. “wants to move on.” Tr. p. 28. FCM

Stapleton testified that P.R. was happy in her foster home and that there were

two other kids there and lots of animals. P.R. wanted this to be her “forever

home,” and the foster parents had indicated a desire to adopt P.R.

[6] Therapist Clem testified that she completed a parenting assessment of J.R. and

served as a therapist to P.R. She was unable to complete the observation

portion of the parenting assessment because P.R. was not allowed to see J.R. at

the time. However, her parenting assessment suggested that J.R. had some

personal and inter-personal characteristics similar to those of known physical

child abusers. J.R.’s status on the sex offender registry also caused her concern

for the possibility of unsupervised contact between P.R. and J.R. In her role as

therapist to P.R., she observed that P.R. had internalized her trauma and

initially had trouble expressing her emotions. However, over time P.R. learned

to identify and express her emotions. The therapist also testified that P.R.

wished for both of her parents’ rights to be terminated because they did not

provide what P.R. needed when she was younger and “she wanted to have

better opportunities and to be able to move forward in her life and have a good

life.” Tr. p. 41. Clem felt that there was no bond between P.R. and Father, that

P.R. felt abandoned by Father because he was not there for her and that

termination would allow her to move forward in her life and put her past

traumas behind her.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1771 | February 11, 2019 Page 4 of 11 [7] The CASA initially had a lot of concerns when she became involved in the

matter as P.R. was fourteen years old and pregnant. She testified that Father

had not had a relationship with P.R. for some amount of time, and during the

time she served as CASA, there was no contact between P.R. and Father.

Father was not present for the Child and Family Team Meetings (“CFTMs”) or

court hearings. She further testified that in the beginning of the case, in August

and September of 2016, P.R. had indicated that she would agree to supervised

visitation with Father if Father wanted to see her, but Father did not initiate

any request to see her. She also believed that DCS had a hard time getting in

touch with Father. She later proofread a letter P.R. sent to the court indicating

that P.R. did not want to see Father any more. The CASA understood that P.R.

wanted the termination because she wanted to be adopted. She also observed

that P.R. felt abandoned by Father and that a forced relationship with her

Father would be very disruptive.

[8] Father testified that he was on the Indiana Sex Offender Registry and that this

registry shows him as homeless. He further testified that he could not live with

his wife due to issues with the registry and the apartment complex. He does,

however, use the address for his mailing address. He was trying to save money

to purchase a home that he could live in with his wife. Father also testified that

he had a strong bond with P.R. until she was approximately four years old.

During that time, P.R.’s mom was in the picture “[o]ff and on, because she’s

too busy doing drugs.” Tr. p. 63. According to Father, a sheriff told him he had

no legal custody to P.R. and that he “g[a]ve [her] up”. Tr. p. 64. Mother had

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1771 | February 11, 2019 Page 5 of 11 found a new boyfriend, and Father tried to get in contact with P.R., but Mother

had pushed him away because she was with someone else. He became aware of

DCS involvement with P.R. in June of 2016 when Mother called him to let him

know DCS was removing P.R. from her care. He initially did not believe

Mother because he thought she was likely on drugs, but he appeared at the

initial hearing once he received a letter. He agreed that he likely missed a lot of

court hearings due to his mailing situation. Father testified that he did not want

to lose his rights due to what happened to P.R. because he was not the one who

caused it. He did not believe the testimony of the FCM and the therapist that

P.R. wanted the rights of her parents to be terminated so she could move on.

[9] The trial court entered an order terminating Father’s parental rights the next

day, on June 27, 2018. Father filed the instant appeal.

Discussion and Decision [10] The termination of parental rights is controlled by Indiana Code section 31-35-

2-4(b)(2), which provides that a petition to terminate parental rights must allege:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.

(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1771 | February 11, 2019 Page 6 of 11 (iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;

(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.

[11] The burden is on DCS to prove each element by clear and convincing evidence.

I.C. § 31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). However, as

Ind. Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court

is required to find that only one prong of that subsection has been established by

clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App.

2010). If the court finds the allegations in a petition are true, the court shall

terminate the parent-child relationship. I.C. § 31-35-2-8(a). If the court does not

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1771 | February 11, 2019 Page 7 of 11 find that the allegations in the petition are true, it shall dismiss the petition. Id.

at § 8(b).

[12] We have often noted that the purpose of terminating parental rights is not to

punish parents but instead to protect their children. In re S.P.H., 806 N.E.2d

874, 880 (Ind. Ct. App. 2004). Although parental rights are constitutionally

protected, the law allows for the termination of such rights when parents are

unable or unwilling to meet their responsibility as parents. Id. Indeed, a parent’s

interests must be subordinated to the child’s interests in determining the proper

disposition of a petition to terminate parental rights. In re G.Y., 904 N.E.at

1259. The court need not wait until a child is harmed irreversibly before

terminating the parent-child relationship. In re J.S., 906 N.E.2d 226, 236 (Ind.

Ct. App. 2009). An inability to provide adequate housing, stability, and

supervision, combined with the current inability to provide the same, will

support a finding that continuation of the parent-child relationship is contrary

to the child’s best interests. In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.

2005).

[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). We neither reweigh evidence nor judge witness credibility. In re E.M., 4

N.E.3d 636, 642 (Ind. 2014). Rather, we consider only the evidence and

inferences most favorable to the judgment. Id. When we review a trial court’s

findings of fact and conclusions of law in a case involving the termination of

parental rights, we first determine whether the evidence supports the findings;

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1771 | February 11, 2019 Page 8 of 11 secondly, we determine whether the findings support the judgment. A.D.S. v.

Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans.

denied.

[14] In its June 27, 2018 order, the trial court found that “DCS has proven the four

elements contained in the cited statute” and listed findings of facts in support of

its conclusions. Appellant’s App. Vol. II. pp. 12–19. Here, the evidence

supported all of the trial court’s findings, and the findings supported the

judgment.

[15] The evidence supported the trial court’s findings that P.R. had been adjudicated

a CHINS since June 16, 2016 and had not been returned to the care of her

parents at the time of the termination order, establishing the requirements of

Ind. Code section 31-35-2-4(b)(2)(A)(i). The foster family with whom P.R. had

been living indicated that they intended to adopt if parental rights were

terminated, and the CASA, FCM, and therapist all testified that P.R. was

happy in her current home, supporting the findings made by the trial court with

respect to Ind. Code section 31-35-2-4(b)(2)(D).

[16] The evidence also supported the trial court’s findings that termination was in

P.R.’s best interest. The therapist testified that P.R. was happy in her foster

home and that the child wanted a fresh start, away from the homelessness and

drug use. The therapist also testified that failure to terminate parental rights

would be harmful to the child and cause P.R. to lose trust and faith in

humanity. The FCM testified that P.R. is aware that Father had recently

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1771 | February 11, 2019 Page 9 of 11 wanted to be involved in her life in spite of his previous absence and lack of

participation, and P.R. did not want contact. She testified the child wanted to

move on and that J.R. was unable to properly care for the child. The evidence

supported the trial court’s findings with respect Ind. Code section 31-35-2-

4(b)(2)(C).

[17] In support of its finding that continuation of the parent-child relationship posed

a threat to the well-being of the child, the trial court relied on evidence that, at

the time of P.R.’s removal, Father was homeless, he was under probation

supervision for a serious sex offense, and he had no bond with P.R. The trial

court also relied on evidence that, at the time of P.R.’s removal, J.R. had not

seen P.R. for nine years and took no action to gain custody of her in spite of his

acknowledgement that he was aware that Mother was unstable and using drugs.

[18] The trial court also relied on evidence that a referral was made for Father to

establish supervised visitation for an eight-month period in the CHINS

proceeding, but Father never made contact. When he finally did re-appear,

P.R., a teenager, indicated that she did not want to visit with her father. The

trial court also concluded that P.R. blamed Father for abandoning her and not

protecting her from the trauma she experienced. The trial court also relied on

the parenting assessment completed by the therapist that Father was at high risk

to abuse, the fact that Father could not live with his wife, and that he was

registered on the sex offender registry as homeless in support of its conclusions

that the continuation of the parent-child relationship posed a threat to the well-

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1771 | February 11, 2019 Page 10 of 11 being of the child. This evidence presented at the termination more than

supports the trial court’s findings.1

Conclusion

[19] Having concluded that clear and convincing evidence supports the trial court’s

findings, and that DCS established all of the requirements in Ind. Code section

31-35-2-4(b) for the termination of Father’s parental rights to P.R. by clear and

convincing evidence, we affirm the trial court’s order of June 27, 2018

terminating J.R.’s parental rights to P.R.

[20] Affirmed.

Vaidik, C.J., and Crone, J., concur.

1 Since we have concluded that DCS has proven by clear and convincing evidence that a continuation of the parent-child relationship poses a threat to the well-being of the child, we do not need to reach whether there is a reasonable probability that the conditions that led to removal will not be remedied. See Ind. Code § 31-35- 2-4(b)(2)(B); see also In re A.K., 924 N.E.2d at 220.

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