MEMORANDUM DECISION Feb 26 2015, 10:07 am 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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE Thomas G. Krochta Gregory F. Zoeller Evansville, Indiana Attorney General of Indiana Erin L. Berger Robert J. Henke Evansville, Indiana Deputy Attorney General Abigail R. Miller Graduate Law Clerk Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 26, 2015 of the Parent-Child Relationship Court of Appeals Case No. of K.E., Child, 82A04-1407-JT-320 Appeal from the Vanderburgh And Superior Court. J.E. (Father) and S.S. (Mother), The Honorable Brett J. Niemeier, Judge. Appellants-Respondents, The Honorable Renee Allen v. Ferguson, Magistrate. Cause No. 82D01-1402-JT-18 Indiana Department of Child Services, Appellee-Petitioner.
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 1 of 24 STATEMENT OF THE CASE
[1] Appellants-Respondents, J.E. (Father) and S.S. (Mother) (collectively, Parents),
appeal the trial court’s Order terminating their parental rights to their minor
child, K.E. (Child).
[2] We affirm.
ISSUES
[3] Parents raise two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion in denying Father’s motion for
a continuance; and
(2) Whether the Indiana Department of Child Services (DCS) presented
sufficient evidence to support the termination of Parents’ parental rights.
FACTS AND PROCEDURAL HISTORY
[4] Father and Mother are the biological parents of two children: J.A.E., born
December 13, 2009, 1 and the Child, born July 3, 2012. Parents, who have
never married, lived together in Mount Vernon, Indiana.
[5] On March 27, 2012, when Mother was several months pregnant with the Child,
she and Father were arrested for manufacturing methamphetamine in Father’s
mother’s home in Evansville, Vanderburgh County, Indiana. Two-year-old
1 Mother’s parental rights to J.A.E. were terminated by default on October 28, 2013, and Father’s parental rights to J.A.E. were terminated on December 27, 2013. Parents’ rights to J.A.E. are not at issue in this appeal, but facts pertaining to J.A.E. are included where appropriate.
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 2 of 24 J.A.E. was in the home at the time police officers discovered the
methamphetamine lab, so the Vanderburgh County DCS took him into custody
and initiated protective proceedings. Parents were subsequently charged with
dealing in methamphetamine as a Class B felony, neglect of a dependent as a
Class C felony, and maintaining a common nuisance as a Class D felony.
[6] Just a few weeks before giving birth to the Child, Mother was released on bond
and ordered to report to her probation officer. Father, however, remained in
jail and was not present for the Child’s birth. On August 14, 2012, he was
convicted of all three charges, and on October 11, 2012, he received concurrent
sentences of ten years, four years, and eighteen months for the Class B, Class C,
and Class D felonies respectively, fully executed in the Indiana Department of
Correction (DOC). Father has been incarcerated throughout these proceedings.
[7] On November 10, 2012, DCS received a report that Mother had deserted the
four-month-old Child at a party. After Mother failed to return for the Child and
was unable to be located, another party attendee contacted the Child’s great-
aunt, J.H., who picked the Child up. J.H. and other relatives unsuccessfully
attempted to contact Mother. DCS removed the Child and placed him in foster
care. A few days later, DCS interviewed Mother. She denied leaving the Child
unattended at a party, claiming instead that her cousin was babysitting him.
[8] On November 14, 2012, DCS filed a petition alleging the Child to be a Child in
Need of Services (CHINS). On November 21, 2012, DCS placed the Child in
J.H.’s care. DCS also arranged for Mother to have supervised visitation with
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 3 of 24 the Child, but Mother consistently canceled or failed to show up. On March
25, 2013, Mother was arrested for violating the conditions of her bond. In
addition to failing to attend her counseling sessions, Mother had submitted
forged documentation of her attendance at Narcotics Anonymous meetings.
For the next six months, pending the resolution of her criminal charges, Mother
was incarcerated at the Vanderburgh County Jail.
[9] On April 1, 2013, the trial court adjudicated the Child to be a CHINS. At the
dispositional hearing on April 23, 2013, the trial court modified the Child’s
relative placement to that of his paternal aunt and uncle, H.D. (Aunt) and A.D.
(Uncle). The trial court ordered Mother to contact DCS upon her release from
jail in order to complete her previously-ordered services. As to Father, the trial
court ordered him “to participate in any program that may help with parenting
while incarcerated as part of the parental participation agreement.”
(Appellants’ App. p. 17). In a subsequent proceeding, the trial court ordered
that J.A.E. also be placed with Aunt and Uncle. Aunt and Uncle intend to
adopt both children.
[10] In June of 2013, due to Mother’s ongoing incarceration, DCS discontinued her
visitation with the Child. On July 9, 2013, the trial court issued an order
permitting the Child to visit Father in the DOC. Thereafter, Aunt began taking
the one-year-old Child to see Father every two weeks, for two to three hours at
a time.
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 4 of 24 [11] On September 11, 2013, pursuant to a plea agreement, Mother pled guilty to
Class B felony dealing in methamphetamine, Class C felony neglect of a
dependent, and Class D felony maintaining a common nuisance. On October
9, 2013, the trial court imposed concurrent sentences of eight years, two years,
and one year respectively, entirely suspended to home detention. One week
later, Mother failed to appear to be placed on electronic monitoring and was,
again, taken into custody. On December 3, 2013, the trial court ordered
Mother’s transfer to a work release program in order for her to obtain
employment to pay the electronic monitoring fees. A few months later, Mother
was placed on electronic monitoring, and she moved into a safe house.
[12] At various points between Mother’s intermittent periods of incarceration, DCS
referred her to services in accordance with her parental participation plan. DCS
provided Mother with a parent aide, who helped her secure housing and
employment, but Mother was fired from two jobs for failing to show up, and
she was evicted from her apartment. In addition, Mother was required to
submit to at least five drug screens per month, but she went only sporadically.
However, the drug screens that Mother did take were all negative for illicit
substances. Mother was ordered to undergo a substance abuse evaluation and
follow any treatment recommendations. She completed the evaluation, which
recommended outpatient substance abuse counseling, but attended only two
therapy sessions. Despite the trial court’s directive for her to contact DCS upon
her release from incarceration, Mother never made any attempt to reinitiate her
services; nor did she seek to visit the Child or even inquire about his well-being.
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 5 of 24 [13] Due to Father’s incarceration, DCS was unable to provide him with any
services. However, pursuant to the trial court’s mandate, he completed the
DOC’s Responsible Parenting program. Father also received a sentence
reduction for completing the PLUS program, which he explained offered “a lot
of classes . . . about the important things in life like bettering yourself as a
parent and how you affected other people with your drug problems and stuff
like that.” (Transcript p. 27). Father also completed an addiction class and was
enrolled in a substance abuse program. Along with their twice monthly visits,
Father testified that he talks to the Child every night on the phone.
[14] On February 24, 2014, DCS filed a petition to terminate Parents’ parental rights
to the Child. On April 17, 2014, the Child’s court-appointed special advocate
(CASA) tendered a report to the court, recommending that “[i]f Father’s
[sentence] modification on [April 24, 2014] allows his early release from
incarceration within [ninety] days, he should be given [six] months to
participate in services and visitation to demonstrate his parenting abilities
before termination of his rights are pursued.” (Appellants’ App. p. 25).
However, in the event that Father was not granted an early release, the CASA
advised that termination was appropriate. On April 24, 2014, Father’s motion
for a sentence modification was denied.
[15] On April 28, 2014, the trial court conducted the termination hearing. Mother
was present, and Father appeared by telephone. Prior to the introduction of
evidence, Father made a motion for a continuance of the termination hearing
based on the CASA’s recommendation that he be given additional time to
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 6 of 24 participate in services. Notwithstanding that his sentence modification was
denied, Father contended that a continuance was appropriate because he
planned to re-apply for a sentence modification in four months and because his
earliest projected release date was now September of 2016 instead of 2017.
Mother joined in Father’s motion, claiming that “she believe[d] herself to be on
track . . . and would like the opportunity to be reunified with the [C]hild.” (Tr.
p. 8). The trial court declined to continue the matter and proceeded with the
hearing. On June 16, 2014, the trial court entered its Order, terminating
Parents’ parental rights.
[16] Parents now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Motion for Continuance
[17] Father claims that the trial court abused its discretion by denying his request to
continue the termination hearing. In a termination of parental rights case, our
court reviews a trial court’s ruling on a continuance motion for an abuse of
discretion. In re E.D., 902 N.E.2d 316, 321 (Ind. Ct. App. 2009), trans. denied.
The denial of a motion for a continuance may be an abuse of discretion if “the
moving party has shown good cause for granting the motion, but no abuse of
discretion will be found when the moving party has not demonstrated that he or
she was prejudiced by the denial.” In re K.W., 12 N.E.3d 241, 244 (Ind. 2014)
(internal quotation marks omitted).
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 7 of 24 [18] At the start of the termination hearing, Father and Mother jointly requested that
the trial court continue the matter in order to allow them additional time to
establish their fitness as parents. Father now asserts that he had “good cause”
for a continuance “due to the fact that he could be released from prison in a
mere four months, and at most in 2016. He would be able to participate in
services and have a strong foundation of drug treatment, prison programs, and
not using drugs behind him.” (Appellants’ Br. p. 7). Moreover, he insists that
he was prejudiced by the denial of the continuance because he was precluded
from being “able to demonstrate to the court that he had stable housing, stable
income, could comply with DCS’s provision of services, and was able to parent
[the Child].” (Appellants’ Br. p. 7). 2
[19] Our court has previously found good cause to justify the continuation of a
termination hearing where, like Father, the parent was incarcerated but desired
an opportunity to participate in DCS services upon his release. Rowlett v.
Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct. App.
2006), trans. denied. In Rowlett, we recognized that the father was incarcerated
“by his own doing.” Id. Nevertheless, because the father was set to be
discharged from prison only six weeks after the termination hearing, and
because the children were already placed with the relative who would adopt
them, we held that a continuation of the matter until his release “would have
2 Although Parents filed a consolidated appellate brief, Mother has not separately argued that she also had good cause for a continuance and was prejudiced by the trial court’s denial thereof. Accordingly, the issue is waived as to Mother. Ind. Appellate Rule 46(A)(8)(a).
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 8 of 24 had little immediate effect upon the children.” Id. We find that Rowlett is
distinguishable from the case at bar.
[20] Contrary to the father in Rowlett, at the time of the termination hearing,
Father’s release date was not imminent. Just four days before the hearing, the
sentencing court declined to modify Father’s sentence; thus, his earliest possible
release date was not until September 19, 2016—nearly two and one-half years
away. Father’s assertion that a subsequent modification petition could result in
his release within four months was purely speculative. See In re M.B., 666
N.E.2d 73, 79 (Ind. Ct. App. 1996) (finding that a delay would be detrimental
to the child “especially since [the father’s] early release from prison is not
guaranteed”), trans. denied.
[21] Father argues that “to ‘insist upon expeditiousness’ in the face of the request
violated [his] right to due process.” (Appellants’ Br. p. 7). “While
continuances may be necessary to ensure the protection of a parent’s due
process rights, courts must also be cognizant of the strain these delays place
upon a child.” In re E.D., 902 N.E.2d at 321. Father’s efforts to communicate
with the Child and to participate in the available DOC programs are certainly
admirable, but by the time of the termination hearing, the Child had already
spent more than half of his young life in either foster care or relative placement.
Even considering the hypothetical possibility that Father might have been
released only four months after the scheduled termination hearing, the CASA
indicated that he would have needed at least six more months to establish stable
housing and employment and to demonstrate his fitness as a parent. Thus, a
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 9 of 24 continuance would have served only to delay the Child’s permanency for nearly
another year with no guarantee that Father would succeed. See C.T. v. Marion
Cnty. Dep’t of Child Servs., 896 N.E.2d 571, 587 (Ind. Ct. App. 2008), trans.
denied. Accordingly, we cannot say that the trial court abused its discretion in
denying Father’s motion for a continuance.
II. Termination of Parental Rights
A. Standard of Review
[22] The parent-child relationship is one of the most revered relationships in our
society, and a parent’s interest in having “care, custody, and control of his or
her children is ‘perhaps the oldest of the fundamental liberty interests.’” In re
G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009) (quoting Troxel v. Granville, 530 U.S.
57, 65 (2000)), reh’g denied. Thus, the Fourteenth Amendment to the United
States Constitution protects the traditional right of parents to establish a home
and raise their children without undue governmental interference. Id.
However, when “parents are unable or unwilling to meet their parental
responsibilities[,]” their rights may be terminated. C.A. v. Ind. Dep’t of Child
Servs., 15 N.E.3d 85, 92 (Ind. Ct. App. 2014). The termination of a parent’s
rights “is the most extreme sanction a court can impose on a parent because
termination severs all rights of a parent to his or her children. Therefore,
termination is intended as a last resort, available only when all other reasonable
efforts have failed.” Id. The purpose of terminating parental rights is to protect
the children—not to punish the parents. Id. at 91-92.
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 10 of 24 [23] In this case, the trial court entered findings of fact and conclusions thereon to
support its termination of Parents’ rights. Thus, on review, our court “shall not
set aside the findings or judgment unless clearly erroneous, and due regard shall
be given to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A). In determining whether the trial court’s
decision 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.” K.T.K. v. Ind. Dep’t of
Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013). We will consider only the
evidence and any inferences that may reasonably be derived therefrom that are
most favorable to the trial court’s judgment. In re G.Y., 904 N.E.2d at 1260.
We do not reweigh evidence or assess the credibility of witnesses. Id.
B. Sufficiency of the Evidence
[24] Parents claim that there is insufficient evidence to support the termination of
their parental rights. To support a termination, DCS must prove, in part,
(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.
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 11 of 24 Ind. Code § 31-35-2-4(b)(2). DCS bears the burden of proving each of these
elements by clear and convincing evidence. Bester v. Lake Cnty. Office of Family &
Children, 839 N.E.2d 143, 148 (Ind. 2005). “Clear and convincing evidence
need not reveal that the continued custody of the parents is wholly inadequate
for the child’s very survival. Rather, it is sufficient to show by clear and
convincing evidence that the child’s emotional and physical development are
threatened by the respondent parent’s custody.” Id. (internal quotation marks
and citations omitted).
[25] Parents contend that “[n]either the trial court’s findings of fact nor the evidence
sufficiently provides clear and convincing evidence that the conditions that
resulted in the removal of [the Child] will not be remedied, that there is a
reasonable probability that the continuation of the parent-child relationship
poses a threat to the well-being of [the Child], or that termination of parental
rights is in the best interests of the [C]hild.” (Appellants’ Br. p. 19).
1. Conditions Resulting in Child’s Removal Unlikely to Be Remedied
[26] In determining whether there is a reasonable probability that the conditions
which necessitated a child’s removal and continued placement outside the
home will not be remedied, the trial court must assess the parent’s fitness to
care for his or her child “at the time of the termination hearing, taking into
consideration evidence of changed conditions.” Castro v. State Office of Family &
Children, 842 N.E.2d 367, 373 (Ind. Ct. App. 2006), trans. denied. This requires
evaluating “the parent’s habitual patterns of conduct to determine whether
there is a substantial probability of future neglect or deprivation of the
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 12 of 24 children.” Id. The trial court “may properly consider 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[,]” as well as
the parent’s participation in any available services. McBride v. Monroe Cnty.
Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). A
termination of parental rights may not “be based entirely upon conditions
which existed in the past, but which no longer exist.” In re T.C., 630 N.E.2d
1368, 1374 (Ind. Ct. App. 1994), reh’g denied; trans. denied.
[27] On appeal, Parents do not specifically challenge any of the trial court’s findings
as being unsupported by the evidence. Instead, Father contends that the trial
court erroneously concluded that the conditions resulting in the Child’s removal
were unlikely to be remedied because “[t]here was ample support for [a] delay”
to afford him the opportunity to participate in services to determine whether he
could be reunited with the Child. (Appellants’ Br. p. 11). As our court has
previously established, “[i]ndividuals who pursue criminal activity run the risk
of being denied the opportunity to develop positive and meaningful
relationships with their children.” Castro, 842 N.E.2d at 374. Nonetheless,
Father directs our attention to his regular communication with the Child during
his incarceration; his “impressive efforts” in the DOC, including maintaining
sobriety and participating in substance abuse and parenting courses; and that he
plans to live and work with his father upon his release. (Appellants’ Br. p. 12).
[28] We find that Father’s argument is simply a request to reweigh the evidence in
his favor by finding that the circumstances regarding his inability to care for the
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 13 of 24 Child have changed, which we decline to do. It is well established that DCS “is
not required to provide evidence ruling out all possibilities of change; rather, it
need only establish that there is a reasonable probability that the parent’s
behavior will not change.” A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,
1157 (Ind. Ct. App. 2013), trans. denied. Here, the Child’s removal was
necessitated, in part, by Father’s inability to provide care and supervision. As
the trial court found, by the time of the termination hearing, Father was still
incarcerated and unable to furnish the Child with shelter, food, clothing, and
supervision. Father’s expected release date was not to occur for another two
and one-half years, which would prevent him from “remedy[ing] those
conditions within a meaningful timeframe.” Castro, 842 N.E.2d at 374.
[29] In addition, the trial court considered Father’s significant history of drug abuse
and criminal activity as indicative of the probability of future detrimental
behavior. Father admitted that at the time he was arrested, he “had a drug
problem” that included both methamphetamine and marijuana use. (Tr. p. 32).
Although Father averred that he is now “done with the drugs and [is] ready to
be a good father[,]” his sobriety has not been put to the test outside of the walls
of the DOC. (Tr. p. 24). See In re S.P.H., 806 N.E.2d 874, 881 (Ind. Ct. App.
2004) (“[I]t is the trial court’s prerogative to conclude that [the father] might be
drug free while in prison, but that based on his pattern of conduct it will not last
once he is released and the probability will be high that the situation will once
more become as it was before he was incarcerated.”). Furthermore, Father has
amassed a significant criminal record, including felony convictions of burglary
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 14 of 24 and unlawful possession of a firearm. His present incarceration stems from his
decision to manufacture methamphetamine notwithstanding the fact that
Mother was pregnant with the Child and that two-year-old J.A.E. was present
in the house. The trial court’s findings indicate that Father’s “pattern of
criminal behavior makes it unlikely that he will be able [support or contribute to
the Child’s upbringing] in a meaningful way in the future.” In re Wardship of
J.C., 646 N.E.2d 693, 696 (Ind. Ct. App. 1995), reh’g denied; trans. denied.
[30] The trial court also noted Father’s failure to demonstrate an ability to provide
for the Child upon his release. Father testified that he plans to live with his
father and also “work[] with him through Vectren.” (Tr. p. 22). Yet, prior to
his arrest in March of 2012, Father had been voluntarily unemployed for at
least three years, and no other evidence was produced to establish that he has,
in fact, secured a job. From the record, it does not appear that Father
completed any vocational training, educational pursuits, or other DOC
programs that would assist him with transitioning into society and being able to
provide for the needs of the Child. As to his housing plans, Father did not
indicate whether, or for what duration, the Child would be welcome to live in
the paternal grandfather’s home; nor is there evidence as to whether the
housing would be suitable for the Child. Taken together, the evidence reveals
that Father has a habitual tendency to put his own reckless interests above the
needs of his Child, and it was well within the discretion of the trial court to
accord greater weight to the evidence of Father’s probable future neglect than to
the evidence of his recent progress. See K.T.K., 989 N.E.2d at 1234.
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 15 of 24 [31] As to Mother, we note that she has not proffered a single argument on her own
behalf to contest the trial court’s conclusion that the conditions resulting in the
Child’s removal will not be remedied, thereby waiving her claim. App. R.
46(A)(8)(a). Waiver notwithstanding, we find that the record contains
sufficient evidence to support the trial court’s determination. While pregnant
with the Child, Mother was arrested for manufacturing methamphetamine
alongside Father. Despite being granted an opportunity to care for the infant
Child while released on bond, Mother left him unattended at a party and did
not return. Moreover, Mother demonstrated an utter indifference to
maintaining her relationship with the Child throughout his removal. She
canceled the majority of her visits, and during the few visits that she did attend,
Mother did not interact with the Child. DCS helped her find employment and
housing, but she quit both jobs and was subsequently evicted from her
apartment. Mother did not complete her mandatory substance abuse
counseling, and she failed to regularly appear for her drug screens. Not only
did Mother fail to take advantage of DCS services, she also repeatedly violated
the conditions of her bond and house arrest, resulting in prolonged periods of
incarceration. Even when she was not incarcerated, Mother did not
communicate with DCS, she never requested visitation, and she did not attempt
to contact the Child. At the time of the termination hearing, Mother had not
seen the Child in over a year. Accordingly, we find no error in the trial court’s
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 16 of 24 determination that the conditions warranting the Child’s removal are unlikely
to be remedied.3
2. Best Interests of the Child
[32] In determining a child’s best interests, the trial court must consider the totality
of the evidence, looking “beyond the factors identified by DCS.” H.G. v. Ind.
Dep’t of Child Servs., 959 N.E.2d 272, 289 (Ind. Ct. App. 2011), reh’g denied;
trans. denied. In so doing, the trial court must subordinate the parent’s interests
to those of the child. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). A
trial court need not postpone termination of the parent-child relationship until
after a child has been irreversibly harmed. A.D.S., 987 N.E.2d at 1158.
[33] Our court has previously determined that, in addition to evidence that the
conditions resulting in a child’s removal will not be remedied, “the
recommendation by both the [DCS] case manager and child advocate to
terminate parental rights . . . is sufficient to show by clear and convincing
evidence that termination is in the child’s best interests.” Id. at 1158-59. Once
again, Mother has not raised a separate argument on her own behalf. App. R.
46(A)(8)(a). Waiver notwithstanding, we find that there is sufficient evidence
to establish that terminating her rights is in the Child’s best interests because
3 Having determined that DCS met its burden to prove that the conditions resulting in the Child’s removal will not be remedied, we need not address the sufficiency of evidence regarding whether the continuation of the parent-child relationship poses a threat to the Child’s well-being. See Castro, 842 N.E.2d at 373 (citing I.C. § 31-35-2-4(b)(2)(B)).
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 17 of 24 both the DCS case manager and the CASA recommended termination based on
her lack of involvement and effort throughout the case.
[34] As for Father, the trial court relied on both the opinions of the DCS case
manager and the CASA in determining that termination of his rights was in the
best interests of the Child. According to the DCS case manager,
I feel like this kid needs permanency as soon as possible. At this point we’re not even sure when [Father] will get out of incarceration. But this [C]hild, especially due to his young age, is so impressionable right now and he needs a family setting. He needs to know he’s safe there no matter what and to know that he’s not gonna be going back and forth between households. We need to establish that for him that early so that there’s not issues when he gets older. (Tr. p. 111). The CASA added that placement with Aunt and Uncle
is where [the Child] is thriving. There’s a sibling that is there and that bond is very strong. They have two other children that are about that same age and they are managing them well. He goes to daycare. He’s very happy and well adjusted. I didn’t see any safety concerns. He played with his [A]unt, which is where he’s at, and the [U]ncle was in the home. There was a lot of playing and a lot of back and forth between them. He just seemed very comfortable. (Tr. p. 89). The trial court found that Aunt and Uncle plan to adopt the Child
“and will keep him safe and provide a stable home.” (Appellants’ App. p. 20).
[35] Although Father does not challenge any of the trial court’s specific findings, he
analogizes his situation to prior cases in which Indiana appellate courts found
insufficient evidence to support a conclusion that termination would be in the
child’s best interests: In re G.Y., 904 N.E.2d at 1257; In re J.M., 908 N.E.2d 191
(Ind. 2009); and H.G., 959 N.E.2d at 272. In each of these cases, the parent was
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 18 of 24 incarcerated at the time of the termination hearing but had demonstrated a
“willingness to continue working toward reunification” and had “made
significant efforts at self-improvement.” H.G., 959 N.E.2d at 293.
Additionally, the parents in these cases had been actively involved in their
children’s lives prior to their convictions; they had endeavored to find suitable
care for their children after being arrested; they had secured housing and
employment prior to their release; and they were scheduled to be released
within relatively short periods of time. See In re G.Y., 904 N.E.2d at 1262-65; In
re J.M., 908 N.E.2d at 192, 194-95; and H.G., 959 N.E.2d at 291-92. As a
result, our courts found that termination should be deferred until the parents
had been released and afforded an opportunity to establish their ability to care
for their children.
[36] Father has likewise made a “daily effort” to establish a relationship with the
Child and to improve himself in the DOC. (Tr. p. 93). Nevertheless, we find
Father’s case to be readily distinct from the others. Father had no relationship
with the Child prior to his conviction. At the time he committed his most
recent three felonies, he was well aware of the Child’s impending birth. Yet, he
chose to manufacture methamphetamine—a notoriously dangerous
undertaking—in the presence of pregnant Mother and two-year-old J.A.E.
Following his arrest, Father made no arrangements for the care of his children,
instead leaving the welfare of his unborn Child entirely in the hands of Mother
even though she was also facing criminal charges. Father was absent during the
Child’s birth, and he did not even have visitation until after the Child’s first
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 19 of 24 birthday. Notably, it was the DCS case manager—not Father—who requested
the visitation privileges for Father because
[Aunt] was going to visit the [F]ather on a regular basis and regardless if his rights are terminated or not, . . . [s]o I started the visits because I wanted to see if there would be appropriate interaction to see if the permanency plan would even work. If there couldn’t be appropriate interaction with visits in a prison, then it would make me rethink my placement, knowing that he’s eventually gonna be around. (Tr. pp. 109-10).
[37] To this day, Father’s only interaction with the Child has occurred within the
secure environment of the DOC. His release date is not imminent. When he is
released, the Child will be approximately four years old and will have spent
nearly his entire life in the care of relatives. Although Father has participated in
several DOC programs, his employment and housing prospects—as well as his
sobriety—are tentative, at best. “Even assuming that [Father] will eventually
develop into a suitable parent, we must ask how much longer [the Child] should
have to wait to enjoy the permanency that is essential to [his] development and
overall well-being.” Castro, 842 N.E.2d at 375. Therefore, we find no error in
the trial court’s conclusion that termination of Parents’ rights is in the Child’s
best interests.
CONCLUSION
[38] Based on the foregoing, we conclude that the trial court acted within its
discretion in denying Father’s motion for a continuance. We further conclude
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 20 of 24 that clear and convincing evidence supports the termination of Parents’ parental
rights.
[39] Affirmed.
[40] Vaidik, C.J. concurs
[41] Baker, J. dissents in part with separate opinion
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 21 of 24 IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination Court of Appeals Case No. 82A04-1407-JT-320 of the Parent-Child Relationship of K.E., a minor child, and J.E. (Father), and S.S. (Mother), Appellants-Respondents,
v.
Indiana Department of Child Services, Appellee-Petitioner
Baker, Judge, dissenting in part.
[42] I respectfully dissent from the resolution reached by the majority with respect to
Father. It has become well established that the mere fact of a parent’s
incarceration is an insufficient basis on which to terminate the parent-child
relationship. See, e.g., In re G.Y., 904 N.E.2d 1257, 1264-66 (Ind. 2009).
[43] In this case, Father has done everything DCS and the juvenile court asked of
him during his incarceration. He has completed a Responsible Parenting
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 22 of 24 program, the PLUS program, and an addiction class, and was actively
participating in a substance abuse program. Father visited with K.E. in person
twice each month and spoke with the Child on the phone every night. There is
nothing he could have done better; there is nothing more he could have done.
Thus, all that remains is the fact of his incarceration. I believe that to be
insufficient to support termination, given the gravity and permanency of
termination of the parent-child relationship.
[44] I acknowledge that unlike many of the cases cited by Father, his release is not
imminent. But his release is also not a decade away. Instead, his earliest
possible release date as of the time of the termination hearing was September
2016. The Child is in a stable, loving, and appropriate placement with Aunt
and Uncle. Indeed, this placement is so appropriate that the family is
preadoptive. Thus, I see no risk of significant harm to the Child if the
termination proceedings were put on hold until Father is released and has time
to establish a life and participate with court ordered services. I do not believe
that waiting another year—or two years, from the date of the termination
hearing—is putting K.E. “on a shelf[.]” Id. at 1263. Instead, I believe that
affording Father the extra time to finish his term of imprisonment is a sensible,
fair, and justified action to take to avoid the “last resort” of termination.
Rowlett v. Vanderburgh Cnty. Office of Family and Children, 841 N.E.2d 615, 623
(Ind. Ct. App. 2006).
[45] I find this Court’s opinion in H.G. v. Indiana Department of Child Services to be
instructive. 959 N.E.2d 272 (Ind. Ct. App. 2011). In H.G., the Mother was
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 23 of 24 incarcerated throughout the CHINS and termination proceedings, with an
earliest possible release date that was more than two years after the date of the
termination hearing. The juvenile court terminated the parent-child
relationship, and this Court reversed, observing the lengths to which Mother
had attempted to comply with DCS and maintain a relationship with her
children while incarcerated:
Mother has been cooperative and involved in the children’s cases, has a bond with her children, has maintained regular contact with them, has attempted to have the children placed with relatives, has taken advantage of opportunities to improve herself while incarcerated, and has made every effort to earn an early release. . . . [H]er ability to parent can be quickly assessed once she is released. The evidence does not support the trial court’s conclusion that termination of Mother’s parental rights is in the children’s best interests. Id. at 291-92. As in H.G., Father has done all that has been asked of him—and
more. And as in H.G., I believe that we should reverse the termination order.
[46] If our caselaw standing for the proposition that incarceration alone is an
insufficient basis to terminate the parent-child relationship is to have any teeth
or meaning whatsoever, I believe it should be applied in this case. As a result, I
would reverse the juvenile court’s order terminating the parent-child
relationship between Father and K.E. and remand for further proceedings
pending Father’s release from incarceration. In all other respects, I concur with
the majority.
Court of Appeals of Indiana | Memorandum Decision | 82A04-1407-JT-320 | February 26, 2015 Page 24 of 24