In the Matter of the Termination of the Parent-Child Relationship of: A.L., A.F.L, C.L. and C.L. & A.l. v. The Ind. Dept. of Child Services

• Court: Indiana Court of Appeals
• Decided: November 12, 2014
• Docket: 71A03-1403-JT-79
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, Nov 12 2014, 9:27 am collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT, ATTORNEYS FOR APPELLEE: C.L. (Mother): GREGORY F. ZOELLER PHILIP R. SKODINSKI Attorney General of Indiana South Bend, Indiana ROBERT J. HENKE ATTORNEY FOR APPELLANT, DAVID E. COREY A.L. (Father): Deputy Attorney General Indianapolis, Indiana MARK J. TORMA South Bend, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE ) TERMINATION OF THE PARENT- ) CHILD RELATIONSHIP OF: ) ) A.L., A.F.L., C.L., & D.L. (Minor Children), ) ) And ) ) C.L. (Mother) & A.L. (Father) ) ) Appellants-Respondents, ) ) vs. ) No. 71A03-1403-JT-79 ) THE INDIANA DEPARTMENT OF CHILD ) SERVICES, ) ) Appellee-Petitioner. ) APPEAL FROM THE ST. JOSEPH PROBATE COURT The Honorable James N. Fox, Judge Cause No. 71J01-1304-JT-31 Cause No. 71J01-1304-JT-32 Cause No. 71J01-1304-JT-33 Cause No. 71J01-1304-JT-34

November 12, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues

C.A.L. (“Mother”) and A.F.L., Jr. (“Father”) separately appeal the probate court’s

order terminating their parental rights over their four children. Mother raises one issue for

our review: whether the Indiana Department of Child Services (“DCS”) proved by clear

and convincing evidence that termination was in the best interests of the children. Father

raises two issues for our review, which we restate as: 1) whether the probate court erred as

a matter of law when it terminated his parental rights without first reviewing certain

evidence, and 2) whether the probate court had sufficient evidence to terminate his parental

rights. Concluding that the probate court did not err in terminating the parental rights of

Mother or Father, we affirm.

2 Facts and Procedural History

Mother and Father (collectively “Parents”) are the biological parents of D.L., A.L.,

A.L. III, and C.L. (collectively “Children”). Parents were married but separated at the time

of the termination hearing.

DCS received a report that Children were living in a dirty home on March 7, 2012.

DCS obtained a court order to visit the home and began an investigation. After visiting the

home and while completing its investigation, DCS received a second report that

methamphetamine was being manufactured in the home. Accompanied by law

enforcement, DCS family case managers again visited the home on March 21, 2012. While

there, the case managers observed paraphernalia used for manufacturing methamphetamine

in the garage, yard, and garbage. Parents admitted to using methamphetamine and

marijuana. The case managers concluded that the home conditions had worsened since the

first visit and also noted that Children were dirty and had scratches on their feet. DCS

removed Children from the home that same day.

Based on the observations made on March 21, 2012, DCS filed petitions alleging

Children were children in need of services (“CHINS”) on March 22, 2012. The court

adjudicated Children as CHINS based on the Parents’ admission to the foregoing

allegations.1 Children were placed in foster care. In a predispositional report, the family

case manager recommended that the responsibility and care of Children be through

wardship to DCS with a permanency plan for reunification. The court held a disposition

1 At the CHINS hearing, Mother admitted to the material allegations in the CHINS petitions. Because Father was incarcerated at the time, he was not present for the hearing. However, the court confirmed in its July 9, 2012 amended initial hearing order that Father admitted that Children were CHINS.

3 hearing on April 23, 2012. Following the hearing, the court granted DCS wardship,

continued Children in foster care, and ordered Parents to: 1) obtain and maintain a stable

source of income; 2) abstain from the use of illegal drugs; 3) complete substance abuse and

parenting assessments; 4) submit to drug screens; 5) attend all scheduled visitations; and

6) participate in home-based services. The court also issued an order on petition for

parental participation, whereby it advised Parents that “failure to participate in a program

of care, treatment, or rehabilitation may lead to the termination of the parent-child

relationship.” Exhibit A at 27-28. The court also ordered DCS to file a progress report

every three months.

The case manager filed the first progress report on July 9, 2012. The report stated

that Children were “generally healthy” but had “lice and scabies” upon entering foster care.

Id. at 30. It reported that Parents consistently had positive drug screens, some of which

were for cocaine. Nevertheless, Parents had participated in a substance abuse assessment

and treatment, as well as home-based case management. Also, Parents had both visited

Children on a regular basis. The case manager recommended that wardship with DCS

continue and recommended that Parents continue the following services: 1) visitation with

their children; 2) substance abuse treatment; 3) home-based services; and 4) parenting

classes. Id. at 32. The court approved the recommendations.

The case manager filed a second progress report and a review hearing was held on

October 22, 2012. He reported that Children were generally healthy and that the lice and

scabies were no longer a problem. Children were undergoing therapy. Parents were

continuing to work on their services but struggled to find steady incomes sufficient to

4 support Children upon reunification. Parents mostly had clean drug screens since the last

report; however, Mother recently tested positive for cocaine. Parents continued to enhance

their ability to fulfill parenting obligations by participating in substance abuse assessment

and treatment, home-based case management, and a parenting assessment. Parents had

made all of their visits to Children. The case manager recommended that wardship with

DCS continue and again recommended Parents continue the following services: 1) home-

based case management; 2) substance abuse treatment; 3) supervised visitation; 4)

parenting assessment; and 5) random drug screens. Id. at 42. The court issued an order on

six month periodic case review, approving the permanency plan for reunification. A twelve

month permanency hearing was scheduled for March 18, 2013.

The case manager filed a third and final progress report before the permanency

hearing. He reported that Children remained well; however, Parents had struggled with

their services. Parents had failed to maintain a stable residence. And although visits had

been consistent since January, Parents had missed many visits with Children prior to that.

Parents had dropped out of substance abuse treatment and both had tested positive for

cocaine since the October report. Father was in the process of restarting his substance

abuse program and completing an assessment for the second time due to missing classes.

Mother also had to restart her substance abuse program after missing several classes.

Parents also completed formal parenting assessments on which they both scored poorly.

The case manager recommended that it would be in the best interest of Children to continue

their current placement with a plan for reunification, because the family appears to have a

good bond and Parents deserve additional time to improve on their goals. The case

5 manager noted that Parents knew that if they did not improve significantly in the next

couple months, termination petitions would be filed and adoption would become the

permanency plan.

At the permanency hearing, the court did not approve DCS’s permanency plan for

reunification. The court took the plan under advisement, suspended Parents’ visitation,

and stopped Parents’ home-based services. DCS filed petitions for involuntary termination

of Parents’ rights on April 5, 2013. A status hearing was held on April 22, 2013, during

which the court approved termination of parental rights and adoption as the new

permanency plan for Children. Children were appointed a Court Appointed Special

Advocate (“CASA”). The CASA filed a report with the court on August 22, 2013,

recommending that Parents’ rights be terminated.

Because Father had been incarcerated for some time, he requested a progress report

from DOC which the trial court granted. The court issued an order on December 19, 2013,2

which found that: Father was taking many steps toward a return to productive life in

society; Father was participating in the facility’s therapeutic Community Program, anger

management program, inside out dad’s program, and other available educational programs;

and Father had the right and desire to present evidence of his participation in these

programs in opposition to the petition to terminate his parental rights. Accordingly, the

court ordered Westville Correctional Facility to submit a progress report prior to the

termination hearing on January 9, 2014 detailing Father’s participation.

2 In the court’s order, which was submitted as a proposed order by Father, the trial court “finds” these things. However, it appears there was not an evidentiary hearing from which the court could find this, but rather because of these assertions by Father, a progress report which would support these assertions would be requested.

6 The court held a termination hearing January 9, 2014, but it had not yet received the

progress report that it had ordered Westville Correctional Facility to submit. At Father’s

request, the court agreed to delay entering final judgment until it received the progress

report and all parties had the chance to respond to it and make closing arguments in writing.

The court took the matter under advisement and ultimately issued an order terminating the

parent-child relationships on February 6, 2014. The court issued another order on February

19, 2014,3 clarifying and confirming the order entered February 6, 2014. Mother and

Father now appeal.

Discussion and Decision

I. Standard of Review

“When reviewing the termination of parental rights, we do not reweigh the evidence

or judge witness credibility.” In re C.G., 954 N.E.2d 910, 923 (Ind. 2011). “[W]e consider

only the evidence and reasonable inferences that are most favorable to the judgment.” S.L.

v. Indiana Dept. of Child Services, 997 N.E.2d 1114, 1123 (Ind. Ct. App. 2013). Here, the

probate court entered findings of fact and conclusions of law in its order to terminate the

parent-child relationships. When reviewing findings of fact and conclusions of law in a

termination of parental rights case, we apply a two-tiered standard of review. In re C.G.,

954 N.E.2d at 923. We must determine whether the evidence supports the findings and

whether the findings support the judgment. Id. “We will set aside the court’s judgment

terminating a parent-child relationship only if it is clearly erroneous.” S.L., 997 N.E.2d at

3 The order states, “The Court finds it had given the parties an opportunity to file findings of fact based on a DOC report. The Court having received a copy of the report from DOC, the Court made a ruling as the time for filing had passed and the Order entered on February 6, 2014 shall remain this Court’s ruling.” Father’s App. at 23.

7 1123. “Clear error is that which leaves us with a definite and firm conviction that a mistake

has been made.” Id.

II. Termination of Parental Rights

“[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) (quotation omitted). To ensure parental rights are

not terminated prematurely, Indiana Code section 31-35-2-4 requires the State to 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; (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)(B)-(D). The State 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). It is sufficient to show that the parent’s custody threatens the child’s emotional and

physical development. In re G.Y., 904 N.E.2d at 1261. However, if the State fails to prove

any element in Indiana Code section 31-35-2-4, it is not entitled to a judgment terminating

parental rights. Id.

Mother and Father have filed separate briefs, challenging the probate court’s

decision to terminate their respective parental rights to Children.

8 A. Termination of Mother’s Parental Rights

Mother argues that the State did not present clear and convincing evidence that

termination of her parent-child relationship with Children is in their best interests. We note

that Mother’s brief cites only three cases; none of them are cited in support of her argument

on appeal. See Ind. Appellate Rule 46(A)(8)(a). Nevertheless, we do not take the

termination of parental rights lightly and address her argument below.

Mother claims that if she was given the same services as those services offered to

the foster parent, then she and Children would have improved equally as well. However,

Mother has offered no legal authority showing that DCS was first required to offer her

those same services before terminating her parental rights. In contrast, our review of the

law shows the opposite. See In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (“[T]he

provision of family services is not a requisite element of our parental rights termination

statute . . . .”).

Additionally, Mother was offered services and was not successful in completing

them. We have held that the probate court may consider a parent’s response to services

offered by DCS in determining the probability of future behavior. In re A.B., 887 N.E.2d

158, 170 (Ind. Ct. App. 2008). It is also true that a CASA’s recommendation that parental

rights should be terminated will support a finding that termination is in the children’s best

interests. See id.

In its order to terminate the parent-child relationships, the court found that Mother

had failed to comply with the previous dispositional orders. Specifically, it found that

Mother had failed to remain free from drugs and noted Mother appeared to be under the

9 influence of drugs at trial and had difficulty staying awake. Mother was also acting

inappropriately prior to trial. The court found that the reason for removal of Children—

Mother’s drug use—was unlikely to be remedied and likely to pose a harm to Children if

allowed to continue. Mother had participated in a substance abuse assessment and

treatment but did not respond well to these services, as she was unable to consistently stay

drug free. We also note that the CASA appointed to Children recommended that Parents’

rights be terminated. Based on the totality of the evidence, the court’s determination that

termination of Mother’s parental rights was in the best interests of Children is not clearly

erroneous.

B. Termination of Father’s Parental Rights

Father argues that the probate court erred as a matter of law when it terminated his

parental rights without first reviewing his progress report from Westville Correctional

Facility and allowing the parties to comment as it stated it would. He then argues that,

without the progress report, the court had insufficient evidence to terminate his parental

rights.

Father cites no legal authority to support his claim that the trial court erred as a

matter of law in issuing its termination order without reviewing the progress report or

allowing the parties to file written closing arguments after seeing it.4 In addition, many of

the facts included in Father’s brief regarding the progress report are not supported by

4 Father claims the court terminated his parental rights without first reviewing the progress report. However, his belief is based on assumption rather than fact. The February 19, 2014 order clarifying and confirming the order entered February 6, 2014 states that the court “received a copy of the report from DOC.” Father’s App. at 23. Although it is unclear whether the court reviewed it, it is telling that Father has failed to identify anything in the progress report that would have changed the outcome.

10 citation to the record. See Ind. Appellate Rule 22(C) and 46(A)(6). Indeed, our review of

the record shows that those facts have no support in the record. It is the appellant’s burden

to present a complete record with respect to the issues raised. Finke v. Northern Ind. Pub.

Serv. Co., 862 N.E.2d 266, 272 (Ind. Ct. App. 2006), trans. denied. Because Father has

failed to articulate the legal basis for his claim or to support it with record material, this

argument has been forfeited. See Zivot v. London, 981 N.E.2d 129, 137-38 (Ind. Ct. App.

2012); Ind. Appellate Rule 46(A)(8)(a).

Father also claims that the probate court used outdated evidence when considering

his non-compliance with the dispositional order as it relates to the elements of the

termination statute; this amounts to an insufficiency of the evidence claim.

The probate court should consider evidence showing that conditions have changed

and judge a parent’s fitness to care for his children at the time of the termination hearing.

In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. This does not, however,

mean that the court must ignore a parent’s past actions, forgoing an examination of the

parent’s pattern of conduct. In re E.E., 736 N.E.2d at 795. The evidence in this case shows

a pattern of conduct by Father that indicates his continued parental rights threaten the

emotional and physical development of Children. See In re G.Y., 904 N.E.2d at 1261.

Children were removed from their home in March 2012 because, among other

reasons, illegal substances were being used and manufactured on the premises. In its

termination order, the court found that Father failed to comply with the April 23, 2012

dispositional order. Specifically, the record shows that Father struggled with his services,

failed to maintain a stable residence, failed to maintain a steady source of income, dropped

11 out of substance abuse treatment, and tested positive for cocaine. He also missed several

visitations with Children. Less than a year after having all four children removed and

placed in foster care, Father began using illegal substances again. The court also found

that Father was currently incarcerated and would remain incarcerated until August 2014.

The fact that he has been free of substance abuse while incarcerated is not convincing

evidence that he will not return to drugs once they are again readily available to him.

Father’s pattern of conduct, especially during a time when his parental rights were

in jeopardy, provided the probate court with sufficient evidence to make its findings

regarding each element of the termination statute and those findings support the

termination of Father’s parental rights. The judgment was not clearly erroneous.

Conclusion

Concluding that the termination of Mother’s parental rights was in the best interests

of Children and that the probate court had sufficient evidence to terminate Father’s parental

rights, we affirm.

Affirmed.

BAKER, J., and KIRSCH, J., concur.