In the Matter of the Termination of the Parent-Child Relationship of: J.F. & N.F. (Minor Children), and A.M. (Father) v. The Indiana Department of Child Services

• Court: Indiana Court of Appeals
• Decided: April 11, 2014
• Docket: 34A02-1309-JT-829
• Status: Unpublished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 Apr 11 2014, 9:49 am establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

CHERYL A. GRIFFIN GREGORY F. ZOELLER Kokomo, Indiana Attorney General of Indiana

ROBERT J. HENKE Deputy Attorney General

DAVID E. COREY Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE ) TERMINATION OF THE PARENT- ) CHILD RELATIONSHIP OF: ) ) J.F. & N.F. (Minor Children), ) ) and ) ) A.M. (Father), ) ) Appellant-Respondent, ) ) vs. ) No. 34A02-1309-JT-829 ) THE INDIANA DEPARTMENT OF ) CHILD SERVICES, ) ) Appellee-Petitioner. ) APPEAL FROM THE HOWARD CIRCUIT COURT The Honorable Lynn Murray, Judge Cause Nos. 34C01-1304-JT-101 and 34C01-1304-JT-104

April 11, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge

Appellant-Respondent A.M. (Father) appeals the termination of his parental rights

with respect to his children J.F., born September 13, 2006, and N.F., born December 7,

2010 (the Children). More particularly, Father contends that appellee-petitioner Indiana

Department of Child Services (DCS) did not present sufficient evidence to support the

juvenile court’s determination that there was a reasonable probability that Father would

not remedy the conditions that led to the Children’s removal. Father argues that the DCS

failed to show that he did not have stable or suitable housing. Concluding that the DCS

provided clear and convincing evidence to support the finding that Father was not likely

to remedy the conditions that led to the Children’s removal, we affirm the judgment of

the trial court.

FACTS

In June 2011, the DCS received a report that the Children were not being cared for

properly. The DCS assessed the family home and found that: the home needed to be

cleaned, the home had roaches in the kitchen, and the Children had not been bathed in

2 days. The DCS assessor returned a few days later to find the home in slightly better

condition, but the home reverted to its original condition within a month.

On July 26, 2011, two DCS caseworkers went to the home and discovered that: 1)

there was a strong odor of decaying food, trash, and urine; 2) there was little food in the

home; 3) the home did not have running water; 4) the electricity was going to be shut off

that evening; 5) cockroaches infested the kitchen; 6) the house had fleas, which had been

biting the children and bit the DCS caseworkers who visited; 7) the children had a foul

odor; and 8) N.F. had insect droppings in his ears. The DCS caseworkers removed the

children that same day and placed them in foster care.

When the DCS became involved, Mother told the DCS that J.F. has been

diagnosed with ADHD and bipolar disorder. When DCS removed the Children, J.F. was

evaluated and diagnosed with disruptive behavior disorder and post-traumatic stress

disorder. When the Children were first placed in foster care, J.F suffered from night

terrors, but these have now lessened. However, when Father visits J.F., these terrors

occur more often. Since Father’s visits have been suspended due to incarceration, J.F. no

longer has these terrors.

The juvenile court held a fact-finding hearing on September 12, 2011. Although

Father was incarcerated when the DCS removed the children on July 26, 2011, he did

reside in the home prior to his incarceration, and he agreed that the family needed

services to prevent the Children’s removal. Both Mother and Father stipulated that the

3 Children were CHINS at the fact-finding hearing.1 The juvenile court adjudicated the

Children as CHINS and found that the home was unsafe and unsanitary, cluttered with

dirty clothing, food, and trash, without running water, infested with fleas and

cockroaches, and that Father was incarcerated when the Children were removed from the

home and remained so at the time of the hearing.

On October 14, 2011, the juvenile court held a dispositional hearing, at which it

granted wardship to the DCS and maintained Children’s foster care placement. It also

ordered Father to participate in services pursuant to an incorporated parental participation

order. On January 23, 2012, Father was represented by counsel at the dispositional

hearing, but did not appear. The juvenile court found that Father had failed to visit

children and had declined DCS services. On April 16, 2012, the juvenile court held a

periodic review hearing and determined that, because Father was incarcerated, the DCS

was unable to provide Father with services. The juvenile court ordered Father to contact

the DCS when he was released to establish visitation and services.

On July 17, 2012, the juvenile court held a permanency review hearing. At that

point, the juvenile court maintained a permanency plan for reunification. However, it

found that Father was not in compliance with that plan as his repeated incarcerations had

caused him to miss visitation. The juvenile court held further periodic review hearings

on October 15, 2012, January 15, 2013, and April 15, 2013. On January 15, 2013, the

juvenile court found that as Children had been removed from the parents’ care for fifteen 1 Mother has consented to the Children’s adoption, and this case concerns only the termination of Father’s parental rights. 4 months, the DCS would be filing for involuntary termination of parental rights. On April

15, 2013, the juvenile court again found that Father was unable to participate in services

or visitation because of his incarceration.

On April 9, 2013, the DCS filed its termination petition for each of the Children,

and on July 22, 2013, the juvenile court held an evidentiary hearing. At the hearing,

Father could not remember the dates the Children were born, and he did not know their

ages. At the time the DCS removed the Children, there was a no contact order between

Father and J.F., because Father had pushed J.F.2 Eventually, the no contact order was

lifted, and Father visited with both Children in a supervised setting at The Villages. At

the hearing, Father testified that he had missed no more than ten visits because of his

incarcerations. Father’s visits never progressed to semi-supervised or unsupervised

visits.

At the hearing, Father could not recall how many times he had been incarcerated

and guessed that he had been incarcerated three or four times. Father has an extensive

criminal history. In 1990 he was convicted of child molestation as a class D felony; in

2008 he was convicted of theft and sentenced to serve three years at the Department of

Corrections. During the CHINS proceedings in April 2012, Father pleaded guilty to

invasion of privacy, and he was sentenced to one year in the local jail suspended to

supervised probation. On April 10, 2013, Father was charged with resisting law

enforcement; the charge was pending as of the time of the termination hearing. At the

2 This incident led to a battery charge that was later dismissed. 5 time of the termination hearing, Father was facing another charge for invasion of privacy

for continuing to meet Mother although he knew there was a no contact order.

Father also testified that he was homeless and that he lived “here and there.” Tr. p.

39. He testified that he currently lived with his girlfriend, although his name was not on

the lease. However, he later testified that he did not live with his girlfriend and that he

only visited. Father has lived with his mother, sister, niece, and his friends. Father

testified that he had not attempted to find a stable home because he believed the Children

would live with Mother. Father stated that he wanted the children to come live with his

niece, but a DCS case manager had visited the niece’s residence and found that it was not

suitable for children.

At the hearing, Family Case Manager (FCM) Mike Deardorff testified that he did

not believe the conditions that led to the Children’s removal would be remedied because

Father was homeless and was consistently in and out of jail and there was no stability for

the children. Court appointed special advocate (CASA) Kathryn Hillman testified that

she did not believe that Father would be able to parent the Children full time, and stated

that she had no reason to believe Father could provide the children with a stable

environment.

After the evidentiary hearing on January 22, 2013, the juvenile court took the

matter under advisement, and, on August 26, 2013, it entered its order terminating

Father’s parental rights. In its order, the juvenile court found that the conditions that led

to the removal of the Children were unlikely to be remedied as father could not provide a

6 stable environment for the Children. The juvenile court also found that DCS had a plan

for the Children, which was to place them for adoption.

Father now appeals.

DISCUSSION AND DECISION

I. Standard of Review

We initially observe that the Fourteenth Amendment to the United States

Constitution protects the traditional right of parents to raise their children. Troxel v.

Granville, 530 U.S. 57, 65 (2000); Bester v. Lake Cnty. Office of Family & Children, 839

N.E.2d 143, 147 (Ind. 2005). However, parental rights are not absolute and must be

subordinated to the child’s interest in determining the proper disposition of a petition to

terminate parental rights. In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004).

Thus, “parental rights may be terminated when the parents are unable or unwilling to

meet their parental responsibilities.” Id. at 265. The purpose of terminating parental

rights is not to punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874,

880 (Ind. Ct. App. 2004).

When reviewing the termination of parental rights, we neither reweigh the

evidence nor judge the credibility of the witnesses. In re G.Y., 904 N.E.2d 1257, 1260

(Ind. 2009). Instead, we consider only the evidence and reasonable inferences that are

most favorable to the judgment below. Id. Here, the juvenile court made specific

findings of fact and conclusions of law in its order terminating Mother’s parental rights.

7 Where the juvenile court enters specific findings and conclusions, we apply a two-

tiered standard of review. Bester, 839 N.E.2d at 147. We first determine whether the

evidence supports the findings, and then whether the findings support the judgment. Id.

We will not set aside the juvenile court’s judgment unless it is clearly erroneous. In re

A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). A judgment is clearly erroneous

when the evidence does not support the findings or the findings do not support the result.

In re S.F., 883 N.E.2d 830, 834 (Ind. Ct. App. 2008).

The elements that the DCS must allege and prove by clear and convincing

evidence in order to effect the termination of parental rights are set forth in Indiana Code

section 3l-35-2-4(b)(2), which provides:

(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.

(iii) The child has been removed from the parent and has been under the supervision of a county office of family and children 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:

8 (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.

I.C. § 31-35-2-4(b)(2).

We note that Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive,

which requires that only one of the sub-elements, under subsection (B), be proven true by

clear and convincing evidence. In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).

II. Termination of Father’s Parental Rights

Father raises one issue on appeal. He argues that the juvenile court did not prove

by clear and convincing evidence that the conditions that led to the Children’s removal

would not be remedied. More particularly, Father contends that the evidence did not

show that he did not have stable and suitable housing.

When determining whether the conditions that led to a child’s removal will not be

remedied, the juvenile court must judge a parent’s fitness to care for his or her child at the

time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

However, the juvenile court’s inquiry must also evaluate a parent’s habitual patterns of

conduct to determine the probability of future neglect or deprivation of the child. Id.

9 The juvenile court may properly consider a parent’s history of neglect, failure to

provide support, lack of adequate housing, and lack of employment, among other things.

McBride v. Monroe Cnty. OFC, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The juvenile

court may also consider the services that the DCS has offered to a parent and the response

to those services. In re M.S., 898 N.E.2d 307, 311 (Ind. Ct. App. 2008).

First, we note that Father’s incarcerations have necessarily precluded him from

obtaining stable housing for the Children. At the evidentiary hearing, Father could not

remember how many times he had been incarcerated. Tr. p. 42. However, he admitted

that his incarceration had caused him to miss visitation on many occasions. Id. at 53.

Father was incarcerated at the time that the Children were removed from Mother’s care,

and he faced charges for three separate crimes during the underlying CHINS and

termination proceedings. Exhibit 4; Tr. p. 47, 61. Father’s history of incarceration

creates doubt as to whether he will be available to provide housing and care for the

Children.

Moreover, the record demonstrates that Father contradicted himself several times

concerning his living situation. He told the juvenile court that he was homeless and then

stated that he was living with his girlfriend, although his name was not on the lease.

Later, Father testified that he did not live with his girlfriend and only visited. Id. at 42,

48. Father has also lived with his mother, sister, niece and friends. Id. at 39, 40, 48, 63.

While Father stated that he planned to have the Children placed with him and his niece, a

10 DCS case manager found his niece’s home to be unsuitable for the Children. Id. at 62,

95, 86.

Finally, DCS FCM Deardorff and CASA Hillman did not believe that Father

would provide stable housing or care for the Children. At the evidentiary hearing, FCM

Deardorff testified that he did not believe the conditions that led to the Children’s

removal would be remedied because Father “has never had a stable home for himself,

much less for his children.” Id. at 91. CASA Kathryn Hillman testified that, if the

Children were placed with Father, she “had no reason to believe that the children will

have a stable environment to live in.” Id. at 107.

Under these facts and circumstance, we conclude that the DCS showed by clear

and convincing evidence that the conditions that led to the Children’s removal would not

be remedied.

The judgment of the juvenile court is affirmed.

BARNES, J., and CRONE, J., concur.