In the Matter of the Termination of the Parent-Child Relationship of E.B., Mother, C.T., Father, and K.B., Child, C.T. v. Ind. Dept. of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 20, 2015
• Docket: 82A01-1412-JT-525
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 20 2015, 8:53 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas G. Krochta Gregory F. Zoeller Vanderburgh County Public Defender Attorney General of Indiana Evansville, Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination July 20, 2015 of the Parent-Child Relationship Court of Appeals Case No. of E.B., Mother, C.T., Father, 82A01-1412-JT-525 and K.B., Child, Appeal from the Vanderburgh Superior Court C.T., The Honorable Brett J. Niemeier, Appellant-Respondent, Judge The Honorable Renee Allen v. Ferguson, Magistrate Cause No. 82D01-1407-JT-80 Indiana Department of Child Services, Appellee-Petitioner.

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 1 of 12 [1] C.T. (“Father”) appeals the juvenile court’s order terminating his parental rights

to his child, K.B. He raises the following restated issue on appeal: whether

sufficient evidence was presented to support the termination of Father’s

parental rights.

[2] We affirm.

Facts and Procedural History [3] On September 10, 2013, K.B. (“Child”) was born to E.B. (“Mother”).1 The

next day, the Indiana Department of Child Services (“DCS”) became involved

with Child after his meconium tested positive for THC after birth. Child was

initially left in the care of Mother, but was removed from her care on October 3,

2013 due to Mother’s instability, lack of housing and income, continued drug

use, and inability to provide for Child. DCS filed a Child in Need of Services

(“CHINS”) petition on the same date. At that time, the CHINS petition named

Father as an alleged father to Child. Mother stipulated to the allegations in the

CHINS petition, and the juvenile court adjudicated Child to be a CHINS.

[4] At the beginning of the CHINS case, DCS Family Case Manager Hilary Bemis

(“FCM Bemis”) searched for Father on databases and asked family members

about Father’s whereabouts, but was unable to locate him. Father was served

by publication regarding the CHINS initial hearing. Father failed to appear for

1 E.B. voluntarily relinquished her parental rights. We, therefore, only recite facts pertaining to her as they relate to Father’s case.

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 2 of 12 his initial hearing on the CHINS petition, and the juvenile court defaulted him

on the CHINS petition and reaffirmed the CHINS adjudication. Due to

Father’s lack of participation in the CHINS case, DCS filed a petition to

terminate his parental rights on July 18, 2014.

[5] On August 6, 2014, FCM Bemis discovered Father’s name on the Department

of Correction website when she was preparing for the termination hearing. On

the same date, FCM Bemis contacted the prison in which Father was

incarcerated and set up a phone conference with him for August 11, 2014.

When FCM Bemis spoke with Father, he informed her that he knew about

Child’s removal and that he had seen Child a couple of times before he became

incarcerated in May 2013. A termination hearing was held on September 29,

2014, and Father appeared by telephone and presented evidence.

[6] During the hearing, the following testimony and evidence was presented.

Father testified that he had not contacted DCS because, prior to being

incarcerated, he had taken Mother to a facility to visit Child, and a woman

there told Father not to contact DCS. Father could not remember the name of

this woman. FCM Bemis testified that she did know the identity of this

woman. At the hearing, Father stated he did not recognize FCM Bemis’s name

and did not remember speaking to her.

[7] On the date of the hearing, Father was incarcerated at Putnamville Correctional

Facility and serving a three-year sentence for Class D felony convictions for

possession of methamphetamine and possession of a controlled substance. His

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 3 of 12 earliest possible release date was set for February 7, 2017. Father’s criminal

history in Indiana included convictions for: (1) Class D felony obtaining a

controlled substance by fraud or deceit on March 1, 2002, which resulted in a

one-year sentence; (2) Class D felony theft on April 5, 2007, which resulted in

an eighteen-month suspended sentence; (3) Class A misdemeanor conversion

on August 14, 2008, which resulted in one year of probation; (4) Class A

misdemeanor possession of paraphernalia on June 18, 2013, which resulted in a

one-year suspended sentence to a drug abuse probation services program. On

October 11, 2013, a petition to revoke probation was filed in regards to this last

conviction, and a warrant was issued. Father was released from custody on

December 19, 2014 and ordered to be placed on ABK Tracking. On April 30,

2014, Father’s probation was again revoked. Father had also been convicted of

forgery in Kentucky on June 23, 2008 and sentenced to five years of probation.

[8] Father’s incarceration at the time of the termination hearing was due to his

addiction to methamphetamine. Prior to being incarcerated, Father testified

that he had been using drugs for about a year and a half; however, he did have a

drug conviction from 2002. While incarcerated, Father was participating in the

Clean Lifestyle is Freedom Forever (“CLIFF”) therapeutic community

treatment program, which is a nine-month program. Father testified that he

was set to graduate from the program on March 9, 2015 and that his sentence

would be modified at that time. At the time of the hearing, Father was on the

second level of the four-level program. Father also stated that he had attended

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 4 of 12 substance abuse treatment programs at two locations prior to his incarceration,

but had no proof of this treatment.

[9] When the hearing was held, Child had been removed from the home since

October 3, 2013, which was before he was even one month old. Father had

only seen Child three times. Father testified that he learned that Child was

born about a month and a half after Child’s birth, but did not take any steps to

establish paternity. At the time of the hearing, Child was in a pre-adoptive

home and was happy and bonded to the foster parents. DCS’s plan was for

Child to be adopted by his foster parents. Both FCM Bemis and the Court

Appointed Special Advocate (“CASA”) recommended the termination of

Father’s parental rights. FCM Bemis recommended termination because

Father did not take any steps to establish paternity or to be involved in Child’s

life and because he knew about Child’s removal and never contacted DCS. Tr.

at 72. FCM Bemis also stated that Child needed permanency as soon as

possible and not to wait until Father’s release from incarceration. Id. at 73.

[10] On November 18, 2014, the juvenile court issued its findings of fact,

conclusions thereon, and order terminating Father’s parental rights. Father

now appeals.

Discussion and Decision [11] We begin our review by acknowledging that this court has long had a highly

deferential standard of review in cases concerning the termination of parental

rights. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 5 of 12 reviewing a termination of parental rights case, we will not reweigh the

evidence or judge the credibility of the witnesses. 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’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. In re B.J., 879 N.E.2d at 14.

[12] Here, in terminating Father’s parental rights to Child, the juvenile court entered

specific findings and conclusions. When a trial court’s judgment contains

specific findings of fact and conclusions thereon, we apply a two-tiered standard

of review. Bester v. Lake Cnty. Office of Family & Children, 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. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

1156 (Ind. Ct. App. 2013), trans. denied.

[13] The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution. In

re C.G., 954 N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are

not absolute and must be subordinated to the child’s interests when determining

the proper disposition of a petition to terminate parental rights. In re J.C., 994

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 6 of 12 N.E.2d 278, 283 (Ind. Ct. App. 2013). In addition, 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.

[14] Before an involuntary termination of parental rights may occur, the State is

required to allege and 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). The State’s burden of proof for establishing these

allegations in termination cases “is one of ‘clear and convincing evidence.’” In

re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).

Moreover, if the court finds that the allegations in a petition described in section

4 of this chapter are true, the court shall terminate the parent-child relationship.

Ind. Code § 31-35-2-8(a) (emphasis added).

[15] Father argues that DCS failed to prove the required elements for termination by

sufficient evidence. Specifically, Father contends that DCS failed to present

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 7 of 12 sufficient evidence that the conditions that resulted in Child being removed

would not be remedied. Father also argues that DCS failed to present sufficient

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

Child. He further alleges that DCS failed to present sufficient evidence that

termination of his parental rights was in the best interests of Child. Father

asserts that he deserved an opportunity to show that he can do better and to

reunite with Child. He anticipates successfully completing the CLIFF program

and being released early from incarceration and contends that he should be

given the opportunity to demonstrate his continued rehabilitation.

[16] In determining whether there is a reasonable probability that the conditions that

led to a child’s removal and continued placement outside the home would be

remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions

led to their placement and retention in foster care.” Id. Second, “we

‘determine whether there is a reasonable probability that those conditions will

not be remedied.’” Id. (citing In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)

(citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second

step, the trial court must judge a parent’s fitness at the time of the termination

proceeding, taking into consideration evidence of changed conditions and

balancing a parent’s recent improvements against “ ‘habitual pattern[s] of

conduct to determine whether there is a substantial probability of future neglect

or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989

N.E.2d at 1231). “We entrust that delicate balance to the trial court, which has

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 8 of 12 discretion to weigh a parent’s prior history more heavily than efforts made only

shortly before termination.” Id. Although trial courts are required to give due

regard to changed conditions, this does not preclude them from finding that

parents’ past behavior is the best predictor of their future behavior. Id.

[17] Here, the evidence showed that, in October 2013, Child was removed from

Mother’s care due to her instability, lack of housing or income, continued drug

use, and inability to provide for Child. At the time of Child’s removal, Father

was not involved in Child’s life, and DCS was not able to locate him. Child’s

placement outside the home continued because Mother voluntarily relinquished

her parental rights, Father failed to contact DCS when he learned of Child’s

removal, and Father was incarcerated when DCS was finally able to locate him.

Father’s argument that he has remedied the conditions that resulted in Child’s

removal and should be given an opportunity to reunite with Child is based on

the fact that he may be released early from prison after completing the CLIFF

program. However, at the time of the termination hearing, Father was still

incarcerated and had only completed one level of the four-level CLIFF

program, and it was not guaranteed that Father’s sentence would be modified

after his completion of the program. Father’s future plans are not evidence on

which the juvenile court could base its determination because it must judge a

parent’s fitness at the time of the termination proceeding. In re E.M., 4 N.E.3d

at 643. At the time of the hearing, Father had yet to complete the CLIFF

program, and his projected release date was still February 2017.

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 9 of 12 [18] Additionally, the evidence showed that Father had a criminal history that began

in 2002 and continued up to the time of the hearing and that he had a history of

substance abuse. Although Father stated he knew about Child’s removal from

Mother’s care, he did not contact DCS and made no effort to be a part of

Child’s life. Father did not participate in the CHINS case due to DCS’s

inability to locate him, and when DCS was finally able to locate Father on

August 6, 2014, it had been almost one year since Child had been removed.

Father’s failure to contact DCS and to participate in the case illustrate his lack

of concern about Child’s welfare. Based on the evidence presented, we

conclude that the juvenile court did not err in finding that there was a

reasonable probability that the conditions that resulted in the removal and the

reasons for continued placement of Child outside the home would not be

remedied.

[19] Father also contends that DCS failed to prove by clear and convincing evidence

that there was a reasonable probability that the continuation of the parent-child

relationship posed a threat to the well-being of Child. However, we need not

address such argument. Indiana Code section 31-35-2-4(b)(2)(B) is written such

that, to properly effectuate the termination of parental rights, the juvenile court

need only find that one of the three requirements of subsection (b)(2)(B) has

been established by clear and convincing evidence. A.D.S., 987 N.E.2d at 1156.

Therefore, as we have already determined that sufficient evidence supported the

conclusion that the conditions that resulted in the removal of Child would not

be remedied, we will not address any argument as to whether sufficient

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 10 of 12 evidence supported the conclusion that the continuation of the parent-child

relationship posed a threat to the well-being of Child.

[20] Father next argues that insufficient evidence was presented to prove that

termination is in the best interest of Child. In determining what is in the best

interests of the child, the trial court is required to look at the totality of the

evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re

D.D., 804 N.E.2d at 267), trans. dismissed. In doing so, the trial court must

subordinate the interests of the parents to those of the child involved. Id.

Termination of a parent-child relationship is proper where the child’s emotional

and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d 927,

930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the

child is irreversibly harmed such that his or her physical, mental, and social

development is permanently impaired before terminating the parent-child

relationship. Id. Additionally, a child’s need for permanency is an important

consideration in determining the best interests of a child, and the testimony of

the service providers may support a finding that termination is in the child’s

best interests. Id. (citing McBride v. Monroe Cnty. Office of Family & Children, 798

N.E.2d 185, 203 (Ind. Ct. App. 2003)).

[21] In the present case, at the time of the termination hearing, Father still had

approximately two and a half years left of his prison sentence and was not

projected for release until February 2017. He had not yet participated in any

services through DCS and would need to do so before DCS and the juvenile

court could determine whether he could properly care for Child. Child should

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 11 of 12 not have to wait over two and a half years for such a determination to be made.

“Permanency is a central consideration in determining the best interests of a

child.” In re G.Y., 904 N.E.2d at 1265. Child had been removed since before he

was one month old. The evidence showed that Child was happy and well

bonded to his foster parents who planned to adopt him. Father had only seen

Child three times. Additionally, both FCM Bemis and the CASA

recommended that Father’s parental rights be terminated. FCM Bemis also

stated that Child needed permanency “as soon as possible” and should not have

to wait until Father is released from prison. Tr. at 73. Based on the above, we

conclude that sufficient evidence was presented to prove that termination was

in the best interest of Child.

[22] We will reverse a termination of parental rights “only upon a showing of ‘clear

error’--that which leaves us with a definite and firm conviction that a mistake

has been made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997)

(quoting In re Egly, 592 N.E.2d 1232, 1235 (Ind. 1992)). Based on the record

before us, we cannot say that the juvenile court’s termination of Father’s

parental rights to Child was clearly erroneous. We therefore affirm the juvenile

court’s judgment.

[23] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 82A01-1412-JT-525 |July 20, 2015 Page 12 of 12