MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 03 2020, 9:04 am the defense of res judicata, collateral estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT C.M. ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Robert L. Yates Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 3, 2020 of the Parent–Child Relationship Court of Appeals Case No. of A.L. and L.M. (Minor 19A-JT-2085 Children) Appeal from the Jennings Circuit and Court The Honorable Jon W. Webster, C.M. (Father), Judge Appellant-Respondent, Trial Court Cause Nos. 40C01-1903-JT-6 v. 40C01-1903-JT-7
The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 1 of 9 Bradford, Chief Judge.
Case Summary [1] C.M. (“Father”) is the biological parent of A.L. (born July 28, 2014) and L.M.
(born September 25, 2015), (collectively “the Children”). In May of 2017, the
Children were adjudicated to be children in need of services (“CHINS”) due to
neglect and Father’s substance abuse. In March of 2019, the Department of
Child Services (“DCS”) petitioned for the termination of Father’s parental
rights. On August 8, 2019, the juvenile court ordered that Father’s parental
rights to the Children be terminated. Father contends that the juvenile court’s
termination of his parental rights was clearly erroneous. We affirm. 1
Facts and Procedural History [2] On September 25, 2016, the Children were removed from Father’s care after he
was arrested following a traffic stop. At the time of the traffic stop, Father
appeared to be under the influence of illegal substances, the Children were not
1 Mother passed away on September 27, 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 2 of 9 properly restrained, and illegal substances and paraphernalia were discovered
within the Children’s reach. The State charged Father with narcotic-drug
possession, unlawful possession of a syringe, marijuana possession,
paraphernalia possession, and neglect of a dependent, of which Father
ultimately pled guilty to Level 6 felony narcotic-drug possession and Level 6
felony neglect of a dependent. On September 27, 2016, DCS petitioned for the
Children to be adjudicated CHINS. In October of 2016, Father was charged
with Class B misdemeanor public intoxication, after he overdosed in the
summer of 2016 in the presence of the Children and had to be revived by
Narcan, to which he later pled guilty. On May 10, 2017, the juvenile court
adjudicated the Children to be CHINS. That same month, Father was arrested
and charged with, inter alia, Class A misdemeanor domestic battery after he
attacked his father, to which he later pled guilty. In June of 2017, Father
screened positive for methamphetamine. In August of 2017, Father was
charged with and later pled guilty to Level 6 felony battery resulting in
moderate bodily injury, after he broke another individual’s leg. On August 17,
2017, the juvenile court held a dispositional hearing in the CHINS matter and
ordered Father to complete parenting and substance-abuse assessments and
follow all recommendations, submit to random drug screens, maintain safe and
stable housing, maintain a legal and stable source of income, notify DCS of any
arrests or criminal charges, contact DCS weekly, follow any terms of probation,
refrain from committing acts of domestic violence and consuming illegal
substances, and attend all visitation.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 3 of 9 [3] In February of 2018, Father was charged with and later pled guilty to Class A
misdemeanor resisting law enforcement, after he resisted arrest and had to be
tasered by police. In January of 2019, Father completed an intensive-outpatient
program (“IOP”). That same month, Father was evicted from his residence and
began living in various hotels throughout the remainder of this matter. In
March of 2019, police officers discovered heroin in Father’s vehicle, and he
admitted that he had begun using heroin again. As a result, Father was charged
with Level 6 felony unlawful possession of a syringe, Level 6 felony narcotic-
drug possession, Level 6 felony maintain a common nuisance, and Class C
misdemeanor paraphernalia possession, which were still pending at the
conclusion of this matter. On March 6, 2019, DCS petitioned for the
termination of Father’s parental rights. On April 25, 2019, Family Case
Manager Ida Prange (“FCM Prange”) spoke to Father over the telephone, and
he was slurring his words. On June 4, 2019, the juvenile court held an
evidentiary hearing regarding DCS’s termination petition. Father completed a
thirty-day detoxification program less than a week before the evidentiary
hearing.
[4] At the evidentiary hearing, Jeannie Arbuckle, the visitation supervisor, testified
that Father’s last visit with the Children was on April 11, 2019. Arbuckle also
stated that “in January [Father] only made three (3) out of five (5) visits, in
February he made three (3) out of four visits, in March he made three (3) out of
four (4) visits and then in April he was down to one (1) out of four (4).” Tr. Vol.
II p. 45.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 4 of 9 [5] FCM Prange testified that she had no verification to establish that Father had
successfully addressed his substance-abuse issues or was drug free. FCM Prange
also testified that she was not able to recommend unsupervised visitation or
placement with Father due to his drug use, legal issues, and lack of stable
housing. FCM Prange believed it was in the Children’s best interests that
Father’s rights be terminated. Guardian ad Litem Merri Eder (“GAL Eder”) also
recommended that Father’s parental rights be terminated.
[6] On August 8, 2019, the juvenile court ordered the termination of Father’s
parental rights. In concluding that it was in the Children’s best interests, the
juvenile court found that:
1. Father has failed to address his substance abuse issues.
2. Father has failed to complete the majority of services ordered by the Court.
3. Father has been incarcerated off and on throughout this case for various violent and drug related crimes. Father was most recently arrested with heroin mere months before this Termination hearing.
4. Father has not enhanced his ability to safely and appropriately parent his children and is unable to provide his children with a safe, stable, and appropriate home.
5. GAL Eder and FCM Prange do not believe it would be in the children’s best interest to give Father more time to complete services and attempt to reunify with them. Father has already had 31 months to complete services (over twice the required time allotted for TPR proceedings) and he has failed to make the necessary efforts to facilitate reunification.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 5 of 9 Appellant’s App. Vol. II pp. 54–55.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 03 2020, 9:04 am the defense of res judicata, collateral estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT C.M. ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Robert L. Yates Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 3, 2020 of the Parent–Child Relationship Court of Appeals Case No. of A.L. and L.M. (Minor 19A-JT-2085 Children) Appeal from the Jennings Circuit and Court The Honorable Jon W. Webster, C.M. (Father), Judge Appellant-Respondent, Trial Court Cause Nos. 40C01-1903-JT-6 v. 40C01-1903-JT-7
The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 1 of 9 Bradford, Chief Judge.
Case Summary [1] C.M. (“Father”) is the biological parent of A.L. (born July 28, 2014) and L.M.
(born September 25, 2015), (collectively “the Children”). In May of 2017, the
Children were adjudicated to be children in need of services (“CHINS”) due to
neglect and Father’s substance abuse. In March of 2019, the Department of
Child Services (“DCS”) petitioned for the termination of Father’s parental
rights. On August 8, 2019, the juvenile court ordered that Father’s parental
rights to the Children be terminated. Father contends that the juvenile court’s
termination of his parental rights was clearly erroneous. We affirm. 1
Facts and Procedural History [2] On September 25, 2016, the Children were removed from Father’s care after he
was arrested following a traffic stop. At the time of the traffic stop, Father
appeared to be under the influence of illegal substances, the Children were not
1 Mother passed away on September 27, 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 2 of 9 properly restrained, and illegal substances and paraphernalia were discovered
within the Children’s reach. The State charged Father with narcotic-drug
possession, unlawful possession of a syringe, marijuana possession,
paraphernalia possession, and neglect of a dependent, of which Father
ultimately pled guilty to Level 6 felony narcotic-drug possession and Level 6
felony neglect of a dependent. On September 27, 2016, DCS petitioned for the
Children to be adjudicated CHINS. In October of 2016, Father was charged
with Class B misdemeanor public intoxication, after he overdosed in the
summer of 2016 in the presence of the Children and had to be revived by
Narcan, to which he later pled guilty. On May 10, 2017, the juvenile court
adjudicated the Children to be CHINS. That same month, Father was arrested
and charged with, inter alia, Class A misdemeanor domestic battery after he
attacked his father, to which he later pled guilty. In June of 2017, Father
screened positive for methamphetamine. In August of 2017, Father was
charged with and later pled guilty to Level 6 felony battery resulting in
moderate bodily injury, after he broke another individual’s leg. On August 17,
2017, the juvenile court held a dispositional hearing in the CHINS matter and
ordered Father to complete parenting and substance-abuse assessments and
follow all recommendations, submit to random drug screens, maintain safe and
stable housing, maintain a legal and stable source of income, notify DCS of any
arrests or criminal charges, contact DCS weekly, follow any terms of probation,
refrain from committing acts of domestic violence and consuming illegal
substances, and attend all visitation.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 3 of 9 [3] In February of 2018, Father was charged with and later pled guilty to Class A
misdemeanor resisting law enforcement, after he resisted arrest and had to be
tasered by police. In January of 2019, Father completed an intensive-outpatient
program (“IOP”). That same month, Father was evicted from his residence and
began living in various hotels throughout the remainder of this matter. In
March of 2019, police officers discovered heroin in Father’s vehicle, and he
admitted that he had begun using heroin again. As a result, Father was charged
with Level 6 felony unlawful possession of a syringe, Level 6 felony narcotic-
drug possession, Level 6 felony maintain a common nuisance, and Class C
misdemeanor paraphernalia possession, which were still pending at the
conclusion of this matter. On March 6, 2019, DCS petitioned for the
termination of Father’s parental rights. On April 25, 2019, Family Case
Manager Ida Prange (“FCM Prange”) spoke to Father over the telephone, and
he was slurring his words. On June 4, 2019, the juvenile court held an
evidentiary hearing regarding DCS’s termination petition. Father completed a
thirty-day detoxification program less than a week before the evidentiary
hearing.
[4] At the evidentiary hearing, Jeannie Arbuckle, the visitation supervisor, testified
that Father’s last visit with the Children was on April 11, 2019. Arbuckle also
stated that “in January [Father] only made three (3) out of five (5) visits, in
February he made three (3) out of four visits, in March he made three (3) out of
four (4) visits and then in April he was down to one (1) out of four (4).” Tr. Vol.
II p. 45.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 4 of 9 [5] FCM Prange testified that she had no verification to establish that Father had
successfully addressed his substance-abuse issues or was drug free. FCM Prange
also testified that she was not able to recommend unsupervised visitation or
placement with Father due to his drug use, legal issues, and lack of stable
housing. FCM Prange believed it was in the Children’s best interests that
Father’s rights be terminated. Guardian ad Litem Merri Eder (“GAL Eder”) also
recommended that Father’s parental rights be terminated.
[6] On August 8, 2019, the juvenile court ordered the termination of Father’s
parental rights. In concluding that it was in the Children’s best interests, the
juvenile court found that:
1. Father has failed to address his substance abuse issues.
2. Father has failed to complete the majority of services ordered by the Court.
3. Father has been incarcerated off and on throughout this case for various violent and drug related crimes. Father was most recently arrested with heroin mere months before this Termination hearing.
4. Father has not enhanced his ability to safely and appropriately parent his children and is unable to provide his children with a safe, stable, and appropriate home.
5. GAL Eder and FCM Prange do not believe it would be in the children’s best interest to give Father more time to complete services and attempt to reunify with them. Father has already had 31 months to complete services (over twice the required time allotted for TPR proceedings) and he has failed to make the necessary efforts to facilitate reunification.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 5 of 9 Appellant’s App. Vol. II pp. 54–55.
Discussion and Decision [7] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The
parent–child relationship is “one of the most valued relationships in our
culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.
2003) (internal citations omitted). Parental rights, however, are not absolute
and must be subordinated to the child’s interests when determining the proper
disposition of a petition to terminate the parent–child relationship. Bester, 839
N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their
parental responsibilities, their rights may be terminated. Id.
[8] In reviewing the termination of parental rights on appeal, we neither reweigh
the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of
Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.
We consider only the evidence and reasonable inferences therefrom which are
most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile
court has entered findings of facts and conclusions of law, our standard of
review is two-tiered. Id. First, we determine whether the evidence supports the
factual findings, second, whether the factual findings support the judgment. Id.
The juvenile court’s findings and judgment will only be set aside if found to be
clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 6 of 9 drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.
2005). “A judgment is clearly erroneous if the findings do not support the
juvenile court’s conclusions or the conclusions do not support the judgment.”
Id.
[9] Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to
support a termination of parental rights. Of relevance to this case, DCS was
required to establish by clear and convincing evidence “that termination is in
the best interests of the [Children.]” Ind. Code § 31-35-2-4(b)(2). In challenging
the sufficiency of the evidence to sustain the termination of his parental rights,
Father contends that the juvenile court erred by concluding that termination of
his parental rights was in the Children’s best interests.2
[10] We are mindful that, in determining what is in the best interests of the child, the
juvenile court must look beyond factors identified by DCS and consider the
totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).
The juvenile court need not wait until a child is irreversibly harmed before
terminating the parent–child relationship because it must subordinate the
interests of the parents to those of the children. McBride v. Monroe Cty. Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have
2 Father does not dispute the juvenile court’s determination that (1) the Children had been removed from Father’s care for at least six months under a dispositional degree, (2) the conditions that resulted in the Children’s removal will not be remedied and continuation of parent–child relationship poses a threat to the Children’s well-being, and (3) there was a satisfactory plan for the care and treatment of the Children, all required findings pursuant to Indiana Code section 31-35-2-4(b)(2).
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 7 of 9 previously held that recommendations from the FCM and court-appointed
special advocate to terminate parental rights, in addition to evidence that
conditions resulting in removal will not be remedied, is sufficient evidence to
show that termination is in the child’s best interests. In re J.S., 906 N.E.2d at
236.
[11] Here, the juvenile court determined that the conditions that resulted in the
Children’s removal would not be remedied. Father does not challenge this
finding on appeal; therefore, we accept that finding as true. See In re S.S., 120
N.E.3d 605, 610 (Ind. Ct. App. 2019). Moreover, FCM Prange and GAL Eder
both recommended the termination of Father’s parental rights. While coupling
that testimony with the juvenile court’s unchallenged determination that there
was sufficient evidence to show that the conditions of removal would not be
remedied is sufficient to support the juvenile court’s termination of Father’s
parental rights, it is not as though this testimony is unsupported by other
evidence in the record.
[12] Throughout the nearly three years that this matter was proceeding, Father was
unable to maintain sobriety or refrain from committing crimes. Father screened
positive for methamphetamine and admitted to using heroin again just a few
months prior to the evidentiary hearing. Moreover, Father has been convicted
of violent and drug-related crimes in five different criminal cases throughout
this matter and had another criminal case pending at the time of termination, in
which he was charged with drug-related crimes. Father has also been
inconsistent in visitation, failed to complete services, and is unable to maintain
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 8 of 9 stable housing. Considering the totality of the evidence, Father has failed to
establish that the juvenile court’s determination that termination was in the
Children’s best interests was clearly erroneous.
[13] The judgment of the juvenile court is affirmed.
Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020 Page 9 of 9