In the Matter of the Termination of the Parent-Child Relationship of N.M. (Minor Child) and F.M. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 3, 2019
• Docket: 18A-JT-2549
• 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 03 2019, 9:15 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 F.M. ATTORNEYS FOR APPELLEE Nicholas A. Adams Curtis T. Hill, Jr. Fort Wayne, 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 3, 2019 of the Parent–Child Relationship Court of Appeals Case No. of N.M. (Minor Child) 18A-JT-2549 and Appeal from the Allen Superior Court F.M. (Father), The Honorable Sherry Hartzler, Appellant-Respondent, Judge Pro Tempore

v. Trial Court Cause No. 02D08-1609-JT-203

The Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 1 of 11 Bradford, Judge.

Case Summary [1] F.M. (“Father”) is the biological father of N.M.1 In December of 2014, N.M.

was adjudicated to be a child in need of services (“CHINS”) due to dirty

housing, lack of supervision, and Father’s inability to care or supervise N.M.

due to incarceration. In September of 2016, the Department of Child Services

(“DCS”) petitioned for the termination of Father’s parental rights after Father

was consistently incarcerated. In December of 2018, the juvenile court ordered

that Father’s parental rights to N.M. be terminated. Father contends that the

juvenile court’s termination of his parental rights was clearly erroneous.

Because we disagree, we affirm.

Facts and Procedural History [2] Father is a biological parent of N.M. (born July 10, 2011). On December 29,

2014, the juvenile court found N.M. to be a CHINS after admissions of dirty

housing conditions, lack of supervision, and Father’s inability to care or

supervise N.M. due to incarceration.2 Prior to N.M.’s CHINS adjudication, in

June of 2014, Father was sentenced to three years of incarceration after being

convicted of Class D felony receiving stolen property and five years of

1 Mother does not appeal the termination of her parental rights. 2 Prior to her removal and CHINS adjudication, N.M. was living with her Mother.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 2 of 11 incarceration with one year suspended to probation after being convicted of

Class D felony criminal trespass and found to be a habitual offender. As part of

his Parent Participation Plan (“PPP”), the juvenile court ordered Father to, inter

alia, refrain from criminal activity; obey the terms of his parole and probation;

cooperate with and maintain contact with DCS, the Guardian ad Litem

(“GAL”), or court-appointed special advocate (“CASA”); provide the family

case manager (“FCM”) with accurate personal/contact information; maintain

suitable housing and employment; enroll in anger management counseling at

Quality Counseling; complete a diagnostic assessment and psychological

evaluation; and submit to random drug screens and refrain from using illegal

substances.

[3] In October of 2015, Father was placed in community corrections. In December

of 2015, Father attempted to start therapy at Quality Counseling; however, the

director did not allow him to participate after his aggressive behavior caused her

to have safety concerns for the staff. That same month, the State alleged that

Father had violated the terms of his probation after testing positive for cocaine.

In January of 2016, Father admitted to the allegation and the court revoked one

year of his previously-suspended sentence. In September of 2016, DCS

petitioned for the termination of Father’s parental rights. In November of 2016,

Father pled guilty to Level 6 felony resisting law enforcement and was

sentenced to 270 days of incarceration. In April of 2017, Father was released

from incarceration and contacted DCS. FCM Melisa Casteel attempted to

contact Father but the telephone number he gave DCS was a nonworking

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 3 of 11 number. Other attempts to locate Father through his last known address, social

media, and Father’s associates were likewise unsuccessful. In August of 2017,

Father was again incarcerated.

[4] In October of 2017, Father pled guilty to Level 6 felony resisting law

enforcement and was sentenced to two years on probation. Upon his release

from jail, Father attempted to contact FCM Casteel but did not leave his

contact information. FCM Casteel’s subsequent attempts to locate Father

through his probation officer were unsuccessful, and his whereabouts were

unknown. In December of 2017, Father was placed in Park Center for

rehabilitation. Father, however, was incarcerated later that month after being

terminated from Park Center for what he describes as “allegedly running drugs

in and out of rehab ah possession of ah paraphernalia stuff.” Tr. Vol. III p. 129.

The juvenile court held a series of evidentiary hearings on the termination

petition on October 25, 2017, March 27, 2018, and June 27, 2018. On

December 24, 2018, the juvenile court ordered that Father’s parental rights be

terminated.

Discussion and Decision [5] The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. Bester v.

Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The

parent–child relationship is “one of the most valued relationships in our

culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 4 of 11 2003) (internal citations omitted). Parental rights, however, are not absolute

and must be subordinated to the child’s interests when determining the proper

disposition of a petition to terminate the parent–child relationship. Bester, 839

N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their

parental responsibilities their rights may be terminated. Id.

[6] In reviewing the termination of parental rights on appeal, we neither reweigh

the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

We consider only the evidence and reasonable inferences therefrom which are

most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

court has entered findings of facts and conclusions of law, our standard of

review is two-tiered. Id. First, we determine whether the evidence supports the

factual findings, second, whether the factual findings support the judgment. Id.

The juvenile court’s findings and judgment will only be set aside if found to be

clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

2005). “A judgment is clearly erroneous if the findings do not support the

juvenile court’s conclusions or the conclusions do not support the judgment.”

Id.

[7] Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

support a termination of parental rights. Of relevance to this case, DCS was

required to establish by clear and convincing evidence

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 5 of 11 (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.

[and]

(C) that termination is in the best interests of the child;

(D) that there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2).3 In challenging the sufficiency of the evidence to

sustain the termination of his parental rights, Father contends that the juvenile

court erred by concluding that (1) the conditions that resulted in the removal of

N.M. would not be remedied, (2) the continuation of the parent–child

relationship posed a threat to N.M.’s well-being, (3) termination of his parental

3 It is not disputed that N.M. had been removed from Father for at least six months under a dispositional decree, a required finding pursuant to Indiana Code section 31-35-2-4(b)(2).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 6 of 11 rights was in the N.M.’s best interests, and (4) there was a satisfactory plan for

the care and treatment of N.M.

I. Indiana Code Section 31-35-2-4(b)(2)(B) [8] Father contends that there is insufficient evidence to establish a reasonable

probability that the conditions that resulted in N.M.’s removal would not be

remedied or that the continued parent–child relationship posed a threat to N.M.

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

DCS was only required to establish one of the circumstances. We choose to first

address Father’s contention that the juvenile court erred by concluding that the

conditions which resulted in N.M.’s removal would not be remedied.

In determining whether the conditions that resulted in the child[ren]’s removal…will not be remedied, we engage in a two- step analysis[.] First, we identify the conditions that led to removal; and second, we determine whether there is a reasonable probability that those conditions will not be remedied. In the second step, the trial court must judge a parent’s fitness as of the time of the termination proceeding, taking into consideration evidence of changed conditions—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. We entrust that delicate balance to the trial court, which has discretion to weigh a parent’s prior history more heavily than efforts made only shortly before termination. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents’ past behavior is the best predictor of their future behavior.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 7 of 11 In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (internal citations, quotations, and

footnote omitted, first and third set of brackets in original, second set added).

[9] The conditions that led to N.M.’s removal were dirty housing conditions, lack

of supervision by Mother, and Father’s inability to care or supervise N.M. due

to incarceration. DCS produced ample evidence to establish a reasonable

probability that these conditions would not be remedied. During these four-year

proceedings, Father has been incarcerated for all but approximately five

months. The record indicates that Father committed two felony offenses,

violated the terms of his probation, and was dismissed from a rehabilitation

center for allegedly peddling illegal substances. Father’s life of crime

demonstrates that he is unwilling to care for or provide supervision for N.M.,

much less refrain from being incarcerated. Given Father’s consistent pattern of

incarceration, the juvenile court did not abuse its discretion by concluding that

the conditions that led to N.M.’s removal would not be remedied. Therefore, it

is unnecessary for us to address Father’s contention that there was insufficient

evidence to conclude that the continued parent–child relationship posed a threat

to N.M.

[10] Father seemingly argues that the “overwhelming” PPP, lack of communication

by FCM Casteel, and FCM Casteel’s alleged bias “created a situation where

[Father] was prevented from having a meaningful opportunity to father his

child.” Appellant’s Br. p. 22. Father’s argument is merely an invitation for us to

reweigh the evidence and judge witness credibility, which we will not do.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 8 of 11 Perrine v. Marion Cty. Office of Child Services, 866 N.E.2d 269, 273–74 (Ind. Ct.

App. 2007). Moreover, the record indicates that FCM Casteel made numerous

attempts through multiple sources to communicate with Father but was unable

to because Father failed to provide adequate contact information. FCM Casteel

also testified that she was willing to stagger the services required in the PPP to

prevent Father from having to start all fifteen at once. The only person Father

has to blame for creating a situation where he was prevented from being able to

parent N.M. is himself.

II. Indiana Code Section 31-35-2-4(b)(2)(C) [11] Father contends that there is insufficient evidence to support the juvenile court’s

conclusion that termination of his parental rights was in N.M.’s best interests.

We are mindful that, in determining what is in the best interests of the child, the

juvenile court must look beyond factors identified by DCS and consider the

totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

The juvenile court need not wait until a child is irreversibly harmed before

terminating the parent–child relationship because it must subordinate the

interests of the parents to those of the children. McBride v. Monroe Cty. Office of

Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have

previously held that recommendations from the FCM and CASA to terminate

parental rights, in addition to evidence that conditions resulting in removal will

not be remedied, is sufficient evidence to show that termination is in the child’s

best interests. In re J.S., 906 N.E.2d at 236.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 9 of 11 [12] FCM Casteel and GAL Michael Harmeyer both testified that termination of

Father’s parental rights was in N.M.’s best interests. While coupling that

testimony with our previous conclusion that there was sufficient evidence to

show that the conditions of removal would not be remedied is sufficient to

support the juvenile court’s termination of Father’s parental rights, it is not as

though this testimony is unsupported by other evidence in the record.

[13] The record indicates that Father has not had any contact with N.M. since

November of 2014 and that N.M. does not have a relationship with Father.

FCM Casteel testified that N.M. is “doing really well” in her foster placement.

Tr. Vol. II p. 235. FCM Casteel also noted that N.M. is doing well in school,

attending therapy, and “very attached to her foster parents.” Id. at 236.

Moreover, the record indicates that Father has anger issues and has failed to

comply with the juvenile court’s order to participate in services to manage said

issues. Throughout these entire proceedings, Father has not been permitted to

visit the DCS office due to a restraining order that was issued after he

threatened an FCM and the foster parents. FCM Casteel recalled a

conversation with Father in which

[Father] um began telling me that um I need to give him back his daughter or I was going to have a bad time um and um you and you know the foster parents were going to have a bad time and he knew how to find us um and eventually I ended conversation um because [Father] just continued to threaten me[.] I explained to him that if did not stop I was going to have to end the conversation[.] [H]e continued [and] I ended the conversation.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 10 of 11 Tr. Vol. III pp. 73–74. Father has not established that the juvenile court’s

determination that termination was in N.M.’s best interests was clearly

erroneous.

II. Indiana Code Section 31-35-2-4(b)(2)(D) [14] Father contends that the juvenile court erred by concluding that adoption was a

satisfactory plan for the care and treatment of N.M. A satisfactory plan need

not be detailed but, rather, offer a general sense of the direction in which the

child will be going after the parent–child relationship is terminated. In re

S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). Here, the plan was for

N.M. to be adopted, which is sufficient evidence to support the juvenile court’s

conclusion. See In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d

258, 268, (Ind. Ct. App. 2004) (concluding that the plan for the child to be

adopted by either the current foster family or another family was a suitable plan

for the child’s future), trans. denied.

[15] The judgment of the juvenile court is affirmed.

Crone, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019 Page 11 of 11