In the Matter of the Termination of the Parent-Child Relationship of J.H. (Minor Child) J.R. (Father) v. The Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 11, 2018
• Docket: 18A-JT-1040
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Dec 11 2018, 9:12 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 Don R. Hostetler Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination December 11, 2018 of the Parent-Child Relationship Court of Appeals Case No. of J.H. (Minor Child); 18A-JT-1040 J.R. (Father), Appeal from the Marion Superior Court Appellant-Respondent, The Honorable Gary Chavers, v. Judge Pro Tem The Honorable Larry Bradley, The Indiana Department of Magistrate Child Services, Trial Court Cause No. 49D09-1706-JT-508 Appellee-Petitioner, and Child Advocates, Inc., Appellee-Guardian Ad Litem.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018 Page 1 of 9 Pyle, Judge.

Statement of the Case [1] J.R. (“Father”) appeals the termination of the parent-child relationship with his

son, J.H. (“J.H.”), claiming that the Department of Child Services (“DCS”)

failed to prove by clear and convincing evidence that: (1) there is a reasonable

probability that the conditions that resulted in J.H.’s removal or the reasons for

placement outside Father’s home will not be remedied; (2) a continuation of the

parent-child relationship poses a threat to J.H.’s well-being; and (3) termination

of the parent-child relationship is in J.H.’s best interests. Concluding that there

is sufficient evidence to support the trial court’s decision to terminate the

parent-child relationship, we affirm the trial court’s judgment.1

[2] We affirm.

Issue Whether there is sufficient evidence to support the termination of the parent-child relationship.

Facts [3] The evidence and reasonable inferences that support the judgment reveal that

J.H. was born to fifteen-year-old Mother and sixteen-year-old Father in June

2013. At the time of his birth, J.H. tested positive for marijuana, and Mother

1 J.H.’s mother (“Mother”) is not a party to this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018 Page 2 of 9 admitted that she had used illegal drugs during her pregnancy. In January

2014, the State removed J.H. from Mother’s home, placed him in foster care,

and filed a petition alleging that he was a Child in Need of Services (“CHINS”).

The petition specifically alleged that Mother “had been involved with the DCS

through an Informal Adjustment Agreement (IA), but services ha[d] not

remedied the reasons for the DCS’ involvement.” (Exhibits at 116). Regarding

Father, the petition alleged that he had “not successfully demonstrated the

ability and willingness to provide [J.H.] with a safe, stable home.” (Exhibits at

116).

[4] Following a March 2014 hearing on the CHINS petition, the trial court

adjudicated J.H. to be a CHINS. Four days after the hearing, Father was

arrested and charged with murder and robbery. In September 2015, pursuant to

a plea agreement, Father pled guilty to Class B felony robbery and was

sentenced to fifteen years with five years suspended.

[5] In June 2017, the State filed a petition to terminate the parental rights of both

Mother and Father. Father appeared at the April 2018 termination hearing

telephonically from the Plainfield Correctional Facility (“PCF”). He testified

that he had been incarcerated since March 2014 and had not seen J.H. since

that time. Father further testified that he had not participated in any parenting

programs even though PCF offers them. In addition, Father testified that his

projected release date was October 2018; however, the Department of

Correction website lists his release date in July 2019. See

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018 Page 3 of 9 https://www.in.gov/apps/indcorrection/ofs/ofs (last visited November 26,

2018).

[6] Also at the hearing, DCS Family Case Manager Jan Blevins (“FCM Blevins”)

testified that, although she had contacted Father by letter, Father had never

responded to her letter or contacted her to inquire about J.H. FCM Blevins also

testified that termination was in J.H.’s best interests because J.H. needed a

stable home that Father was unable to provide.

[7] Guardian Ad Litem Christy Nunley (“GAL Nunley”) also testified that

termination was in J.H.’s best interests “to provide [J.H.] with a stable

permanent life.” (Tr. 47). GAL Nunley further testified that J.H. was “very

bonded to his current placement” and that the permanency plan for J.H. was

adoption. (Tr. 47).

[8] In May 2018, the trial court issued a detailed order terminating Father’s

parental relationship with J.H. Father appeals.

Decision [9] Father argues that there is insufficient evidence to support the termination of his

parental rights. The Fourteenth Amendment to the United States Constitution

protects the traditional right of parents to establish a home and raise their

children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law

provides for termination of that right when parents are unwilling or unable to

meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.

2005). The purpose of terminating parental rights is not to punish the parents Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018 Page 4 of 9 but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

1999), trans. denied.

[10] When reviewing the termination of parental rights, we will not weigh the

evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

Rather, we consider only the evidence and reasonable inferences that support

the judgment. Id. Where a trial court has entered findings of fact and

conclusions thereon, we will not set aside the trial court’s findings or judgment

unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

whether the court’s decision to terminate the parent-child relationship is clearly

erroneous, we review the trial court’s judgment to determine whether the

evidence clearly and convincingly supports the findings and the findings clearly

and convincingly support the judgment. Id. at 1229-30.

[11] A petition to terminate parental rights must allege:

(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

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018 Page 5 of 9 (D) that there is a satisfactory plan for the care and treatment of the child.

IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.

[12] Here, Father argues that there is insufficient evidence to support the

termination of his parental rights. Specifically, he first contends that the

evidence is insufficient to show that there is a reasonable probability that: (1)

the conditions that resulted in J.H.’s removal or the reasons for placement

outside the parent’s home will not be remedied; and (2) a continuation of the

parent-child relationships poses a threat to J.H.’s well-being.

[13] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

disjunctive. Therefore, DCS is required to establish by clear and convincing

evidence only one of the three requirements of subsection (B). In re A.K., 924

N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

is a reasonable probability that the conditions that resulted in J.H.’s removal or

the reasons for his placement outside the home will not be remedied.

[14] In determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied, we engage in a two-step

analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

conditions that led to removal or placement outside the home and then

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. The second step requires a trial court to judge a parent’s

fitness at the time of the termination proceeding, taking into consideration Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018 Page 6 of 9 evidence of changed conditions and balancing any recent improvements against

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. Habitual conduct may include

parents’ prior criminal history, drug and alcohol abuse, history of neglect,

failure to provide support, and a lack of adequate housing and employment.

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).

The trial court may also consider services offered to the parent by DCS and the

parent’s response to those services as evidence of whether conditions will be

remedied. Id. Requiring a trial court to give due regard to changed conditions

does not preclude it from finding that a parent’s past behavior is the best

predictor of his future behavior. E.M., 4 N.E.3d at 643.

[15] Here, our review of the evidence reveals that J.H. was removed from Mother’s

home in January 2014. He was not placed with Father because Father had

failed to demonstrate the ability to provide his son with a safe and stable home.

Two months later, Father was charged with murder and robbery. He later pled

guilty to Class B felony robbery and was sentenced to fifteen years with five

years suspended. Father’s earliest release date is July 2019. At the time of the

hearing, Father had not seen J.H. for four years. In addition, although FCM

Blevins had contacted Father, he had never made any attempt to contact the

case manager or to obtain information about his son during this time. This

evidence supports the trial court’s conclusion that there was a reasonable

probability that the conditions that resulted in J.H.’s placement outside the

home would not be remedied. We find no error.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018 Page 7 of 9 [16] Father also argues that there is insufficient evidence that the termination was in

J.H.’s best interests. In determining whether termination of parental rights is in

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

the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

denied. In so doing, the court must subordinate the interests of the parents to

those of the child involved. Id. Termination of the parent-child relationship is

proper where the child’s emotional and physical development is threatened. 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 physical,

mental, and social development is permanently impaired before terminating the

parent-child relationship. In addition, a child’s need for permanency is a

central consideration in determining the child’s best interests. In re G.Y., 904

N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

may support a finding that termination is in the child’s best interests. McBride v.

Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

2003).

[17] Here, our review of the evidence reveals that at the time of the termination

hearing, J.H. had been out of the home for over four years. FCM Blevins

testified that termination was in J.H.’s best interests because J.H. needed a

permanent home that Father was unable to provide. GAL Nunley also testified

that termination was in J.H.’s best interests so that he would have a stable

permanent life. In addition, GAL Nunley further testified that J.H. was bonded

to his current caretaker and that the permanent plan for him was adoption.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018 Page 8 of 9 This evidence supports the trial court’s conclusion that termination was in

J.H.’s best interests.

[18] We 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.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.

[19] Affirmed.

Najam, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018 Page 9 of 9