In the Matter of the Termination of the Parent-Child Relationship of J.O. (a minor child) J.O. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 17, 2019
• Docket: 19A-JT-48
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 17 2019, 9:01 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 John R. Worman Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination July 17, 2019 of the Parent-Child Relationship Court of Appeals Case No. of J.O. (a minor child); 19A-JT-48 J.O. (Father), Appeal from the Vanderburgh Superior Court Appellant-Respondent, The Honorable Brett J. Niemeier, v. Judge Trial Court Cause No. The Indiana Department of 82D04-1807-JT-1389 Child Services, Appellee-Petitioner.

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 1 of 11 Statement of the Case [1] J.O. (“Father”) appeals the termination of the parent-child relationship with his

son, J.O. (“J.O.”).1 He contends that 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.O.’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 the J.O.’s well-being; and (3)

termination of the parent-child relationship is in J.O.’s best interests.

Concluding that there is sufficient evidence to support the trial court’s

termination of the parent-child relationship, we affirm the trial court’s

judgment.2

[2] We affirm.

1 J.O.’s mother (“Mother”) is not a party to this appeal. 2 Father also argues that he was “denied due process when DCS failed to comply with state law requiring it to move to dismiss a termination petition when it failed to provide necessary services.” (Father’s Br. at 12.). In support of his argument, Father directs us to INDIANA CODE § 31-35-2-4.5, which provides that “[a] person described in section 4(a) of this chapter may file a motion to dismiss the petition to terminate the parent-child relationship if any of the following circumstances apply[.]” (emphasis added). First, Father has waived appellate review of this issue because he failed to raise it at the termination hearing. See Hite v. Vanderburgh Cnty OFC, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006) (explaining that it is “well established that we may consider a party’s constitutional claim waived when it is raised for the first time on appeal.”) Waiver notwithstanding, we find no error. The interpretation of a statutory scheme is a question of law reserved for the courts. G.E. v. Ind. Dep’t of Child Servs., 29 N.E.3d 769, 771 (Ind. Ct. App. 2015). When determining the legislature’s intent, we look at the plain language of the statute and attribute the common, ordinary meaning to terms found in everyday speech. Id. If the word “shall” is used, it is constructed as mandatory language creating a statutory right to a particular outcome after certain conditions are met. Id. However, the term “may” in a statute ordinarily implies a permissive condition and a grant of discretion. Id. Here, the plain language of the statute reveals that filing a motion to dismiss the petition is permissive and is discretionary rather than required. Father’s argument therefore fails.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 2 of 11 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

Father was incarcerated when J.O. was born in December 2012. Father was

released from prison in early 2013. In May 2013, the State charged Father with

dealing methamphetamine, unlawful possession of a syringe, and resisting law

enforcement. In August 2013, Father pled guilty to all three charges. Shortly

after his 2014 release from prison on those convictions, Father punched his

girlfriend in the face and was charged with armed robbery, battery with a

deadly weapon, and theft. Father subsequently pled guilty to the theft charge in

September 2014.

[4] In November 2014, Father and Mother were involved in one of their frequent

domestic disputes when Mother sustained numerous facial fractures after

Father punched her in the face. As a result of the domestic violence, DCS

removed J.O. from his parents that same month and filed a petition alleging

that J.O. was a Child in Need of Services (“CHINS”). The State charged

Father with battery with moderate bodily injury and battery resulting in serious

bodily injury in December 2014.

[5] Following J.O.’s removal, Father was admitted to a substance abuse treatment

program at Brentwood Meadows (“Brentwood”) in December 2014. At the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 3 of 11 time of his admission, Father tested positive for methamphetamine, THC, and

benzodiazepines and admitted that he had been using K2 for years. In January

2015, the State charged Father with auto theft and theft. His resulting

incarceration caused him to miss multiple treatment appointments at

Brentwood, and he was discharged from the program that same month. He

subsequently completed the program in February 2015.

[6] Also in February 2015, J.O was adjudicated to be a CHINS. The following

month, the trial court ordered Father to: comply with random drug screens;

obtain a substance abuse evaluation and follow treatment recommendations;

remain drug free; and attend supervised visitation with J.O..

[7] In April 2015, Father’s mother and stepfather (“Paternal Grandparents”)

petitioned to be J.O.’s guardians. That same month, J.O.’s maternal great aunt

and her domestic partner (“the Aunts”) filed a petition to adopt J.O. in a

separate proceeding. Their petition alleged that Father’s and Mother’s consent

to the adoption was not required pursuant to INDIANA CODE § 31-19-9-8. At a

hearing later that month, the trial court consolidated the CHINS, the

guardianship, and the adoption proceedings. In July 2015, the State charged

Father with intimidation, criminal mischief, and arson involving Paternal

Grandparents’ house.

[8] During the pendency of the proceedings, in June 2016, DCS filed a petition to

terminate Mother’s and Father’s parental rights. In November 2016, the trial

court held a hearing in the adoption and termination proceedings. Following

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 4 of 11 the hearing, the trial court concluded that Father’s consent to the adoption was

irrevocably implied. The trial court issued an order granting the Aunts’ petition

to adopt J.O., effectively closing the CHINS, guardianship, and termination

proceedings. Father appealed, and, in November 2017, this Court reversed the

trial court after concluding that the trial court had erred in concluding that

Father’s consent to the adoption was irrevocably implied. In the Matter of

Adoption of J.R.O., 87 N.E.3d 37, 43 (Ind. Ct. App. 2017), trans. denied.

[9] Shortly after this Court reversed the adoption, Father punched his mother in the

face while children were in the home. The State charged Father with resisting

law enforcement, domestic battery, and domestic battery committed in the

presence of a child less than sixteen years old. The following month, at the

request of his mother and with the State’s approval, Father was admitted to a

long-term, faith-based treatment program in Texas. The State agreed to dismiss

the charges against Father if he successfully completed the program.

[10] In July 2018, DCS filed a second petition to terminate Father’s parental rights.

Testimony at the October 2018 termination hearing revealed that Father had

just completed the Rise Discipleship Program in Abilene, Texas, and that, in

two years, he would be in a position to return to Indiana from Texas to start his

own ministry. Father explained that he would raise the money that he needed

to start the ministry through fundraisers. Father suggested that J.O. could live

with Paternal Grandparents until Father returned to Indiana. Father further

testified that he had not had any contact with J.O. in two years.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 5 of 11 [11] DCS Family Case Manager Jodi Straus (“Case Manager Straus”) testified that

she had been J.O.’s case manager for four years. According to Case Manager

Straus, J.O. had been removed from the home because of domestic violence

between Mother and Father. However, additional issues, such as Father’s

violent criminal history, manifested themselves during the CHINS case. When

asked if she had any current concerns regarding Father and his use of illegal

substances, Case Manager Straus explained as follows: “I have concerns since I

haven’t had recent contact with him and I have not received any records from

Abilene, Texas so I don’t really know what kind of treatment he’s going

through at this time. He is also not drug screened for us.” (Tr. at 76). The case

manager further explained that she had not received a drug screen from Father

in two years. In addition, Case Manager Straus was not able to say that Father

could provide J.O. with suitable housing, stability, or an environment free of

violence and crime. Nor was she able to say that Father had a steady source of

income for J.O.’s necessities. She further testified that termination was in J.O.’s

best interests. The plan for J.O. was adoption by the Aunts. According to Case

Manager Straus, the Aunts had provided six-year-old J.O. with a stable loving

home for the past three years. The case manager also testified that J.O. was

bonded with the Aunts and other children in their family and that it would be

detrimental to remove him from that home. Court Appointed Special Advocate

Deborah Gamache (“CASA Gamache”) also testified that termination was in

J.O.’s best interests.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 6 of 11 [12] Following the hearing, in December 2018, the trial court issued a detailed

thirteen-page order terminating Father’s parental relationship with J.O. In the

order, the trial court concluded as follows: “There is a reasonable probability

that . . . [t]he conditions which resulted in [J.O.’s] removal or in [J.O.’s]

continued placement outside the home will not be remedied as the father

cannot take the child at the present time.” (Tr. Vol. 2 at 25). Father appeals.

Decision [13] Father contends 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 but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

App. 1999), trans. denied. 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.

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

(B) that one (1) of the following is true:

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 7 of 11 (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). DCS must prove the alleged circumstances by

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

[15] Here, Father first contends that the evidence is insufficient to show that there is

a reasonable probability that: (1) the conditions that resulted in J.O.’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.O.’s

well-being.

[16] 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.2d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

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

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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 8 of 11 [17] When making a determination as to whether there is a reasonable probability

that the conditions that resulted in a child’s removal or continued placement

outside the home will not be remedied, a trial court must judge a parent’s fitness

at the time of the termination proceeding, taking into consideration evidence of

changed circumstances. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

1157 (Ind. Ct. App. 2013). The trial court must also evaluate the parent’s

habitual patterns of conduct to determine the probability of future neglect or

deprivation of the child. Id. Habitual conduct may include a parent’s prior

criminal history, drug and alcohol abuse, history of neglect, failure to provide

support, and a lack of adequate housing and employment. Id. 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. DCS is not required to provide evidence ruling out all possibilities of

change. Id. Rather, it need only establish a reasonable probability that the

parent’s behavior will not change. Id

[18] Here, our review of the evidence reveals that during the four-year pendency of

the proceedings, Father was in and out of jail and treatment programs. At no

time during the proceedings was Father able to provide stability, supervision, or

housing for his son. At the time of the termination hearing, Father, who had

not seen his son in two years, told the trial court that he would not be in a

position to provide stability, supervision, or housing to his son for two

additional years. Father explained that he needed the additional time to raise

money necessary to start his own ministry in Indiana. This evidence supports

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 9 of 11 the trial court’s conclusion that there was a reasonable probability that the

reasons for J.O.’s placement outside the home would not be remedied. We find

no error.

[19] Father also argues that there is insufficient evidence that the termination was in

J.O.’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).

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

hearing, J.O. had been living in a stable and loving home with the Aunts for

three years. Case Manager Straus testified that J.O. was bonded with the Aunts

and the other children in their family and that it would be detrimental to

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 10 of 11 remove him from that home. She further testified that termination was in J.O.’s

best interests. CASA Gamache also testified that termination was in J.O.’s best

interests. The testimony of these service providers, as well as the other evidence

previously discussed, supports the trial court’s conclusion that termination was

in J.O.’s best interests.

[21] 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.

[22] Affirmed.

Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019 Page 11 of 11