MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 25 2020, 9:53 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 Yvonne M. Spillers Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
Robert J. Henke Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 25, 2020 of the Parent-Child Relationship Court of Appeals Case No. of C.P. and O.P. (Minor 19A-JT-2379 Children); Appeal from the Wells Circuit R.P. (Father), Court The Honorable Kenton W. Appellant-Respondent, Kiracofe, Judge v. Trial Court Cause Nos. 90C01-1811-JT-56 Indiana Department of Child 90C01-1811-JT-57 Services, Appellee-Petitioner.
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 1 of 14 Statement of the Case [1] R.P. (“Father”) appeals the trial court’s termination of his parental rights over
his minor children C.P. and O.P. (“Children”). Father presents a single issue
for our review, namely, whether the Indiana Department of Child Services
(“DCS”) presented sufficient evidence to support the termination of his parental
rights. We affirm.
Facts and Procedural History [2] Father and A.P. (“Mother”) (collectively “Parents”) have two children
together: C.P., born November 13, 2015, and O.P., born October 12, 2016. On
December 29, 2016, when O.P. was eleven weeks old, DCS received a report
that Children were the victims of physical abuse. The Family Case Manager
(“FCM”) who investigated the report went to Parents’ home and found it “in
substandard condition with dirty diapers and clutter throughout.” Appellant’s
App. Vol. 2 at 31. Father became “extremely defensive” and was “verbally
aggressive toward the FCM.” Id. On January 4, 2017, DCS removed Children
from Parents’ care, and on January 5, DCS filed petitions alleging Children
were CHINS. On January 9, the State charged Father with battery, as a Level 5
felony, for harming O.P.
[3] On April 24, after Parents admitted that Children were CHINS, the court found
Children to be CHINS and entered a dispositional order. In particular, the
court ordered Father to: participate in home-based therapy and follow all
recommendations; complete a psychological evaluation and follow all
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 2 of 14 recommendations; not commit acts of domestic violence; participate in a
domestic violence assessment program; and attend supervised visits with
Children. Father was “partially compliant” in that “he attended (although did
not complete) the Center for Nonviolence [program,] and he submitted himself
to a psychological assessment.” Appellant’s Br. at 13. In September, Father
pleaded guilty to battery, as a Level 6 felony, and he was sentenced to 545 days,
with all but forty-four days suspended. In addition, Father was ordered to have
no contact with O.P. for the duration of his suspended sentence.
[4] In November 2018, DCS filed petitions to terminate Father’s parental rights
over Children. 1 Following a hearing, the trial court granted the termination
petitions on August 2, 2019. In support of its order, the trial court entered the
following relevant findings:
15. Father has criminal history that demonstrates a propensity for violence and disobedience of the law. Father has been convicted of the following offenses:
a. Burglary Break and Enter Structure of Another Person (State’s Exhibit 11).
b. Battery (State’s Exhibits 20-21);
c. Driving While Suspended (State’s Exhibits 1-2; 4- 6; 7-8; 22-30); and
1 Mother voluntarily terminated her rights over Children.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 3 of 14 d. Battery on a Person Less Than 14 Years Old (State’s Exhibit[s] 12-19).
16. Father has three instances of substantiated allegations of sexual abuse. The first occurred in 2009 when Father was a juvenile. The victims were ten (10) year-old, seven (7) year-old, and five (5) year-old boys. The second occurrence was in 2011 when Father was eighteen (18) years old. The victim in that case was a fifteen (15) year-old girl. Finally, in 2018, Father was substantiated against again; the victim was a thirteen (13) year- old girl.
17. Father submitted to a diagnostic evaluation performed by Jinny Broderick of Park Center (State’s Exhibit 59). Father was diagnosed with the following:
a. Other Specified Disruptive, Impulse Control, and Conduct Disorder;
b. Child Psychological Abuse, Encounter for mental health service for perpetrator of parent-child psychological abuse; and
c. Child Physical Abuse; Encounter for mental health services for perpetrator of parental child abuse.
18. The evaluation recommended that Father complete a certified batterer’s intervention program and meet with a neurologist for an evaluation regarding his head injury to determine what, if any, effect this has on his ability to manage frustrations for such anger and resulting impulsive actions.
19. Father gave Jinny Broderick minimal information during the evaluation, appeared annoyed at the evaluation, and was aggressive in his language when speaking of FCM Garrett.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 4 of 14 20. During the evaluation, Father stated that he did not believe he had done anything wrong nor was he inappropriate in parenting his children. He did not believe that you can verbally abuse a child and that there was no abuse absent marks or bruises.
21. Jinny Broderick believed that Father appeared grandiose, had rigid thinking, blamed others, and was pre-contemplative.
22. Father submitted to a psychological evaluation provided by Charles Rohr, Psy.D, on November 11, 2017 and December 7, 2017. Father was diagnosed with the following:
a. Child Psychological Abuse;
b. Child Physical Abuse;
c. Antisocial Personality Disorder;
d. Paranoid Personality Disorder; and
e. Mild Neurocognitive Disorder Due to Traumatic Brain Injury, with Behavioral Disturbance: mood disruptions, agitation, impaired executive function.
23. Father has not participated in a neurological evaluation to address any physical injury to his brain that might contribute to his mental health issues.
24. Father has not participated in individual therapy as recommended.
25. Father has never participated in mental health services as recommended by the psychological evaluation and the Center for Non-Violence.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 5 of 14 26. On January 24, 2018, Father initiated services at the Center for Non-Violence and began attending sessions; however, on June 9, 2018, Father was expelled from the program.
27. Brandon Evans, the Center for Non-Violence Men’s Program Senior Coordinator, explained that Father had been expelled from the program for inappropriate behavior. Evans stated, “When confronted about an act of violence against a former coworker, he [Father] became angry, defensive, and argumentative.”
28. Further, “[Father] stated ‘I’ll take care of Wendy (his DCS caseworker) and him (referring to the coworker in question).’” Finally, Evans stated, “Lastly, he attempted to discredit staff in the eyes of other group members by saying, ‘Don’t trust him,’ while pointing his finger at the facilitator and speaking to another participant.” (State’s Exhibit 58).
29. Father has battered Mother on multiple occasions. On one occasion, Mother received a bruised lip when Father smashed her face into the concrete. (State’s Exhibit 57).
30. Mother has witnessed Father being verbally aggressive toward the children on multiple occasions.
31. At the time of the fact-finding hearing, Mother and Father were no longer in a relationship.
32. Mother has consented to the adoption of the children by the current placement, the maternal grandmother.
33. The children are bonded with each other and their maternal grandmother.
34. The children have been removed from Father’s care for twenty-seven (27) months, which is nearly the entirety of the youngest child’s life.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 6 of 14 35. The Department’s plan for the children is that they be adopted by their maternal grandmother. The Department will continue to provide for the placement, care, and treatment of the children until such time as they are adopted.
36. The guardian ad litem is satisfied with the DCS’ plan for the children.
Appellant’s App. Vol. 2 at 32-35. This appeal ensued.
Discussion and Decision Standard of Review
[5] Father contends that the trial court erred when it terminated his parental rights.
We begin our review of this issue by acknowledging that “[t]he traditional right
of parents to establish a home and raise their children is protected by the
Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe
Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.
denied. However, a trial court must subordinate the interests of the parents to
those of the child when evaluating the circumstances surrounding a
termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d
832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is
proper where a child’s emotional and physical development is threatened. Id.
Although the right to raise one’s own child should not be terminated solely
because there is a better home available for the child, parental rights may be
terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 7 of 14 [6] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove:
(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.
***
(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) (2019). DCS’s “burden of proof in termination of
parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.
Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting
I.C. § 31-37-14-2).
[7] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of
Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.
denied. Instead, we consider only the evidence and reasonable inferences that
are most favorable to the judgment. Id. Moreover, in deference to the trial
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 8 of 14 court’s unique position to assess the evidence, we will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous.
Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.
Ct. App. 1999), trans. denied.
[8] Here, in terminating Father’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains special findings and conclusions, we apply a two-tiered standard of
review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).
First, we determine whether the evidence supports the findings and, second, we
determine whether the findings support the judgment. Id. “Findings are clearly
erroneous only when the record contains no facts to support them either
directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If
the evidence and inferences support the trial court’s decision, we must affirm.
In re L.S., 717 N.E.2d at 208.
[9] On appeal, Father contends that the trial court erred when it concluded that:
(1) the conditions that resulted in Children’s removal and the reasons for their
placement outside of his home will not be remedied; (2) there is a reasonable
probability that the continuation of the parent-child relationships poses a threat
to the well-being of Children; and (3) termination is in Children’s best interests.
However, as Indiana Code Section 31-35-2-4(b)(2)(B) is written in the
disjunctive, we need not address the issue of whether there is a reasonable
probability that the continuation of the parent-child relationships poses a threat
to the well-being of Children.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 9 of 14 [10] Initially, Father asserts that the court improperly admitted evidence “about
facts and circumstances that occurred while Father was a juvenile, from other
CHINS actions involving other children, and about Father’s criminal history.”
Appellant’s Br. at 12. And he maintains that that evidence “influenced and
formulated the basis of the Order being appealed.” Id. However, Father does
not direct us to portions of the transcript showing that he objected to that
evidence, other than a single objection to testimony regarding his molestation of
three minor boys in 2009 when Father was also a minor. See Tr. Vol. 2 at 62.
Accordingly, other than the testimony regarding the 2009 incidents, Father has
waived this issue for our review. And, while the trial court mentioned the 2009
offenses in one finding, there is ample independent evidence to support the
termination of Father’s parental rights absent that evidence, and the error, if
any, would be harmless. See In re Termination of Parental Rights of E.T., 808
N.E.2d 639, 646 (Ind. 2004) (holding improper admission of evidence harmless
error where substantial independent evidence supported judgment). Finally,
there is no question that Father’s criminal history was relevant to the
termination proceeding. Father’s contention on this point is not well taken.
Reasons for Children’s Placement Outside of Father’s Home
[11] Father contends that DCS did not present sufficient evidence to prove that the
reasons for Children’s placement outside of his home will not be remedied.
This court has clarified that, given the wording of the statute, it is not just the
basis for the initial removal of the child that may be considered for purposes of
determining whether a parent’s rights should be terminated, but also any basis
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 10 of 14 resulting in the continued placement outside of a parent’s home. Inkenhaus v.
Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct.
App. 2005), trans. denied. Here, the trial court properly considered the
conditions leading to the continued placement outside of Father’s home,
including Father’s history of domestic abuse, especially the battery of O.P. The
court observed that Father did not participate in mental health services that
were recommended following his psychological evaluation, and he “refuses to
address his aggressive personality.” Appellant’s App. Vol. 2 at 36.
[12] We hold that the evidence supports the trial court’s findings and conclusion.
To determine whether there is a reasonable probability that the reasons for
Children’s continued placement outside of Father’s home will not be remedied,
the trial court should judge Father’s fitness to care for Children at the time of
the termination hearing, taking into consideration evidence of changed
conditions. See E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643
(Ind. 2014). However, the court must also “evaluate the parent’s habitual
patterns of conduct to determine the probability of future neglect or deprivation
of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind.
Ct. App. 2008) (quotations and citations omitted). Pursuant to this rule, courts
have properly considered evidence of a parent’s prior criminal history, drug and
alcohol abuse, history of neglect, failure to provide support, and lack of
adequate housing and employment. Id. Moreover, DCS is not required to rule
out all possibilities of change; rather, it need establish only that there is a
reasonable probability the parent’s behavior will not change. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 11 of 14 [13] The trial court found, and the evidence supports, that: Father has a criminal
history “that demonstrates a propensity for violence and disobedience of the
law”; Father “did not believe he had done anything wrong nor was he
inappropriate in parenting his children”; and Father was “expelled” from the
Non-Violence Men’s Program “for inappropriate behavior.” Appellant’s App.
Vol. 2 at 32-34. Father’s argument on appeal is simply an invitation for this
Court to reweigh the evidence and judge the credibility of the witnesses, which
we cannot do. Based on the totality of the circumstances, we hold that the trial
court’s findings support its conclusion that the conditions that resulted in
Children’s removal and the reasons for their placement outside of his home will
not be remedied.
Best Interests
[14] Father also contends that the trial court erred when it concluded that
termination of his parental rights is in Children’s best interests. In determining
what is in a child’s best interests, a juvenile court is required to look beyond the
factors identified by DCS and consider the totality of the evidence. A.S. v. Ind.
Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A
parent’s historical inability to provide “adequate housing, stability, and
supervision,” in addition to the parent’s current inability to do so, supports
finding termination of parental rights is in the best interests of the child. Id.
[15] When making its decision, the court must subordinate the interests of the
parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),
906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 12 of 14 child is irreversibly harmed before terminating the parent-child relationship.”
Id. Moreover, this Court has previously held that recommendations of the
family case manager and court-appointed advocate to terminate parental rights,
coupled with evidence that the conditions resulting in removal will not be
remedied, are sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. Id.
[16] Father asserts that “his serious head injury interfered with his ability to
complete services” and that “he should have been given more time to get a
neurological assessment and a treatment plan which could help him control his
behaviors before terminating his parental rights.” Appellant’s Br. at 14. But
Father ignores the fact that he had two years from the time DCS filed the
CHINS petitions until the final hearing to seek a diagnosis and treatment. He
gives no explanation why two years was not enough time to be assessed and
participate in appropriate treatment for his alleged head injury.
[17] As the trial court’s findings demonstrate, Father has not shown that he is
capable of parenting Children. Father did not participate in most of the court-
ordered services, and, because of his battery against O.P., a no-contact order
prevented parenting time. Children have lived with their maternal grandmother
since January 2017, which is a pre-adoptive home, and they are bonded and
thriving. The family case manager recommended termination of Father’s
parental rights. Given the totality of the evidence, Father cannot show that the
trial court erred when it concluded that termination of his rights was in
Children’s best interests.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 13 of 14 [18] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020 Page 14 of 14