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 APPELLANT: ATTORNEYS FOR APPELLEE:
RUTH JOHNSON GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Appellate Division Indianapolis, Indiana ROBERT J. HENKE DAVID E. COREY Nov 24 2014, 9:36 am KIMBERLY A. JACKSON Deputy Attorneys General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA In the Matter of the Termination of the Parent-Child ) Relationship of R.O., Minor Child, and J.T., Father, ) and M.O., Mother,1 ) ) J.T., ) ) Appellant-Respondent, ) ) vs. ) No. 49A02-1404-JT-249 ) INDIANA DEPARTMENT OF CHILD SERVICES, ) ) Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Gary K. Chavers, Judge Pro Tempore The Honorable Larry E. Bradley, Magistrate Cause No. 49D09-1308-JT-16182
November 24, 2014 MEMORANDUM DECISION - NOT FOR PUBLICATION KIRSCH, Judge
1 We note that M.O. did not file an appeal in this case. However, “[u]nder Indiana Appellate Rule 17(A), ‘[a] party of record in the trial court or Administrative Agency shall be a party on appeal.’” Hoosier Outdoor Adver. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 162 (Ind. Ct. App. 2006) (quoting Ind. Appellate Rule 17(A)), trans. denied. J.T. (“Father”) appeals the juvenile court’s order terminating his parental rights to
his child, R.O. He raises the following restated issues for our review:
I. Whether Father’s due process rights were violated during the underlying proceedings; and
II. Whether sufficient evidence was presented to support the termination of Father’s parental rights.
We affirm.
FACTS AND PROCEDURAL HISTORY
On May 30, 2012, the Marion County office of the Indiana Department of Child
Services (“DCS”) filed a petition alleging that R.O. (“Child”) was a Child in Need of
Services (“CHINS”) based on Child having no legal caregiver because Child’s guardian,
maternal grandmother, had been arrested.2 Father, who at the time was the alleged father,
was incarcerated with an expected release date in 2036. M.O. (“Mother”) did not have
custody of Child and had been recently released from prison for a drug-related conviction.
The petition also alleged that maternal grandmother’s home was unfit and had no
electricity.
At the time of the CHINS petition and at all relevant times during the CHINS and
termination proceedings, Father was incarcerated. He had been incarcerated since around
the time of Child’s birth, which occurred on October 28, 2011. On March 10, 2011, Father
was charged with Class B felony battery, Class D felony battery, and Class A felony
burglary. On November 4, 2011, he was convicted of Class A felony burglary and
2 The CHINS petition and subsequent termination order also included M.O.’s other two children, K.T. and K.O., who are Child’s half-siblings. M.O. does not participate in this appeal, and therefore, we only include facts regarding her and her other children as is necessary to address Father’s arguments. 2 sentenced to fifty years executed in the Department of Correction (“the DOC”). Father’s
earliest release date is in 2036. Father has an extensive criminal history consisting of three
misdemeanor convictions and five felony convictions dating back to 1996. Father has
never met Child and has only seen pictures of her. Prior to the CHINS filing, he provided
for Child financially “as [he] was able to.” Tr. at 26.
Due to his incarceration, Father did not appear at the initial hearing on May 30,
2012, at which the juvenile court authorized Child’s placement with R.T., the paternal
grandmother of Child’s half-siblings, and the juvenile court set the matter for an additional
hearing. At the June 15, 2012 pretrial hearing in the CHINS case, Father did not appear
but was represented by private counsel who entered a denial on Father’s behalf. At the
July 6, 2012 pretrial hearing, Father appeared by counsel and requested DNA testing since
Father had not yet established paternity. The juvenile court ordered paternity testing be
done. At the July 20, 2012 pretrial hearing, Father, by counsel, entered a stipulation that,
“[Father] is currently incarcerated and unable to care for the child. Therefore the coercive
intervention of the Court is necessary to ensure the safety and well-being [of] the child.”
Pet’r’s Ex. 6 at 25. On July 27, 2012, the juvenile court adjudicated the Child to be a
CHINS. In the dispositional order, the juvenile court did not order services for Father
because he was incarcerated and not expected to be released until 2036.
Father wrote to DCS in early 2013 to inform the agency that if his paternity was
established, he wanted to have Child placed in his business partner’s home with Father’s
other daughter, who was then eighteen years old. DCS informed Father that, without
paternity being established, Father had no say in Child’s placement. On January 11, 2013,
a swab was taken from Father for paternity testing. At the August 9, 2013, permanency 3 hearing, the juvenile court noted that DNA testing had still not been completed on Child.
Child was tested on August 19, 2013, and a DNA test report issued on August 21, 2013,
established that Father was the biological father of Child.
On August 15, 2013, DCS filed a petition to terminate Father’s parental rights to
Child. At the termination hearing, Father said that he had not been informed “by any court
or any institution” that paternity had been established. Tr. at 23. However, he did testify
that Child’s maternal grandmother told him that paternity had been established in him. Id.
DCS case manager Sher’ron Anderson (“FCM Anderson”) testified that she did not inform
Father about the paternity results because she had no reason to believe that Father’s counsel
would not tell him. Id. at 79. At the time of the termination hearing, Child was two years
old and had placement in the home of R.T. During the underlying CHINS proceeding,
Child had changed placement several times, but had been in the home of R.T. since May
2013. Child was very attached to her half-siblings, who also lived with R.T. R.T. lived
with her twenty-six-year-old son, Ra. T. They both planned to adopt Child and her siblings.
R.T. wanted her son to adopt jointly with her because of her health, and she did not want
to worry about the children being removed again. Id. at 15.
FCM Anderson testified that it was not in Child’s best interest to be moved from
R.T.’s home because Child was bonded with her siblings and with R.T. and Ra. T. and “she
loves it there.” Id. at 60. DCS’s plan for Child was adoption, and FCM Anderson
recommended that parental rights be terminated so Child could be adopted. Id. at 59. The
Guardian Ad Litem (“GAL”) agreed with the permanency plan of adoption. She did not
agree that Ra. T. should solely adopt Child, and without him first being more involved in
the case, she did not recommend termination. Id. at 102-03. The GAL stated she would 4 be satisfied if only R.T. adopted Child, and that in the future it was possible she would
support R.T. and Ra. T. co-adopting Child. Id. at 103, 115-16. FCM Anderson testified
that DCS supported adoption by both R.T. and Ra. T. Id. at 61. There had been concerns
regarding Ra. T. adopting Child because of his prior use of physical discipline on one of
Child’s older siblings. Ra. T. had spanked the older sibling with his hand when the child
struck R.T. in the face with a closed fist. Background checks done by DCS did not reveal
any inappropriate conduct of Ra. T., and DCS put a safety plan in place for all the
caregivers who would be taking care of Child and her siblings.
On March 17, 2014, the juvenile court issued it order terminating Father’s parental
rights to Child. Father now appeals.
DISCUSSION AND DECISION
I. Due Process
The Due Process Clause of the U.S. Constitution prohibits state action that deprives
a person of life, liberty, or property without a fair proceeding. In re B.J., 879 N.E.2d 7, 16
(Ind. Ct. App. 2008), trans. denied. Parental rights constitute an important interest
warranting deference and protection, and a termination of that interest is a “unique kind of
deprivation.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981). However, children
have an interest in terminating parental rights that prevent adoption and inhibit establishing
secure, stable, long-term, continuous relationships. Lehman v. Lycoming Cnty. Children’s
Servs. Agency, 458 U.S. 502, 513 (1982). When the State seeks to terminate the parent-
child relationship, it must do so in a manner that meets the requirements of due process. In
re B.J., 879 N.E.2d at 16.
5 Due process in parental-rights cases involves the balancing of three factors: (1) the
private interests affected by the proceeding; (2) the risk of error created by the State’s
chosen procedure; and (3) the countervailing government interest supporting the use of the
challenged procedure. S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct.
App. 2013) (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011) (citing A.P. v. Porter Cnty.
Office of Family & Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000), reh’g denied,
trans. denied.)). The private interests affected by the proceeding, a parent’s interest in the
care, custody, and control of his or her child, is substantial, and the State’s interest in
protecting the welfare of a child is also substantial. Id. “Because the State and the parent
have substantial interests affected by the proceeding, we focus on the risk of error created
by DCS’s actions and the trial court’s actions.” Id. Any procedural irregularities in a
CHINS proceeding may be of such significance that they deprive a parent of procedural
due process with respect to the termination of his or her parental rights. Id. Nevertheless,
a parent may waive a due process claim in a CHINS or termination proceeding by raising
that claim for the first time on appeal. Id.
Father argues that several procedural irregularities occurred throughout the CHINS
and termination proceedings that denied him a meaningful opportunity to be heard
regarding Child’s fate. He first contends that he was not given notice of the initial hearing.
He next claims that the fact that, in the CHINS finding, the juvenile court ordered that he
receive no services due to his incarceration was a violation of his due process rights. He
further asserts that DCS had no contact with him during the proceedings. Lastly, Father
alleges that DCS failed to establish paternity in a timely manner, and together with DCS’s
policy of not allowing putative fathers to participate in the proceedings, it effectively 6 deprived him of the having a voice in the CHINS proceedings. Father argues that these
procedural irregularities establish that he was denied a meaningful opportunity to be heard
during the proceedings and created a “huge risk of error in this case.” Appellant’s Br. at
19. Due to the irregularities, Father further asserts that his ability to prove to the juvenile
court that he should remain a part of Child’s life was severely compromised.
As to Father’s argument that he was not provided notice of the initial hearing, we
note that Father did not raise this issue in either the CHINS or termination proceedings. A
parent may waive a due process claim in a CHINS or termination proceeding by raising
that claim for the first time on appeal. S.L., 997 N.E.2d at 1120. Waiver notwithstanding,
Father has not shown how he was harmed by not being notified of the initial hearing. An
initial hearing was held on May 30, 2012, where the juvenile court authorized Child’s
placement with R.T and set the matter for an additional hearing on June 15, 2012. At the
June 15 hearing, Father’s counsel appeared on his behalf and entered a denial of the CHINS
allegations. Father has shown no harm resulting from not being notified of the May 30
initial hearing as the hearing was continued to June 15, and he was represented by counsel
on that hearing date.
Father’s second contention is that it was a due process violation that, in the CHINS
finding, the juvenile court ordered that he not receive services. He argues that he was
excluded “from the services deemed critical in overcoming CHINS determinations and [in]
preventing efforts to terminate parental rights.” Appellant’s Br. at 14. Father does not
point to where, in the record, he raised this issue with the juvenile court during the
underlying proceedings; therefore, the issue is waived. Waiver notwithstanding, “a failure
to provide services does not serve as a basis on which to directly attack a termination order 7 as contrary to law.” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (citing In re
E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000)). Further, one of the reasons Child was
adjudicated a CHINS was Father’s incarceration and inability to care for Child,
necessitating the coercive intervention of the court. Father was incarcerated for the
duration of the underlying proceedings and did not have a release date until 2036. Father
cites to no services that would have assisted with this situation, nor has he shown that he
independently entered into services provided by the DOC, if any, that may have alleviated
this issue.
Father’s next argument is that DCS had no contact with him throughout the CHINS
and termination proceedings. The record shows that FCM Anderson took over as the case
manager sometime in September or October 2013. At some point after taking over the
case, she wrote Father a letter informing him she was the new case manager and asking
him to contact her with any questions or concerns. There was nothing in the record to
indicate that Father ever responded to this letter or ever wrote any of the case managers
during the proceedings. Father did not call the prior DCS case managers to testify and did
not request a copy of FCM Anderson’s letter. FCM Anderson testified that neither Father
nor his business partner directly contacted her regarding placement of Child. Tr. at 59-60.
The record does not support Father’s argument that this alleged lack of contact caused a
risk of error in this case.
Father’s final contention is that the delay in establishing paternity violated his due
process rights because until paternity was established he was not able to make
recommendations as to placement of Child. We reject this contention. First, the statutes
governing termination of parental rights do not require an adjudication of paternity prior to 8 the termination of parental rights. In re D.Q., 745 N.E.2d 904, 911 n.4 (Ind. Ct. App.
2001). Here, the juvenile court ordered DNA testing on July 6, 2012 in the CHINS
proceeding. Father was tested on January 11, 2013, and Child was tested on August 9,
2013. FCM Anderson testified that the delay in Child getting tested was due to her
placement with a cousin who did not get her tested. Tr. at 71.
Second, although Father indicated that he informed DCS of his preference for
Child’s placement and his attorney told him that he had no legal right to request placement
for Child without first establishing paternity, at the June 15, 2012 pretrial hearing, Father’s
counsel and his business partner appeared and informed the juvenile court that Father
wanted Child placed with his business partner. Therefore, even before paternity was
established, Father was able to notify the juvenile court of his preference for placement of
Child, and the court considered the evidence and Child’s best interest and ordered
alternative placement. Father cannot show harm due to the delay in establishing paternity.
Further, no matter where Child was placed, with R.T. or with Father’s choice, it
would not have precluded the termination of Father’s parental rights. DCS is only required
to establish that there is a satisfactory plan for the care and treatment of the child in
termination proceedings. In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009). This
court has held that adoption is a satisfactory plan for the care and treatment of a child under
the termination of parental rights statute. Id. DCS presented adoption as the satisfactory
plan for Child’s care, and placement with a particular person would not have precluded the
termination of Father’s parental rights.
We conclude that nothing in the record supports Father’s argument that his due
process rights were violated. He has not shown there was any risk of error created by the 9 State’s chosen procedure. Although Father argues that these alleged procedural
irregularities denied him a right to due process, most, if not all, of the issues were due to
Father’s incarceration. “[T]his court has recognized that ‘[i]ndividuals who pursue
criminal activity run the risk of being denied the opportunity to develop positive and
meaningful relationships with their children.’” Castro v. State Office of Family &
Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006) (quoting In re A.C.B., 598 N.E.2d 570,
572 (Ind. Ct. App. 1992)), trans. denied.
II. Sufficient Evidence
We begin our review by acknowledging that this court has long had a highly
deferential standard of review in cases concerning the termination of parental rights. In re
B.J., 879 N.E.2d at 14. When reviewing a termination of parental rights case, we will not
reweigh the evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,
265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence and
reasonable inferences that are most favorable to the judgment. Id. Moreover, in deference
to the trial court’s unique position to assess the evidence, we will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous. In re B.J.,
879 N.E.2d at 14.
Here, in terminating Father’s parental rights to Child, the juvenile court entered
specific findings and conclusions. When a trial court’s judgment contains specific findings
of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake
Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine
whether the evidence supports the findings, and second, we determine whether the findings
support the judgment. Id. “Findings are clearly erroneous only when the record contains 10 no facts to support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d
98, 102 (Ind. 1996). If the evidence and inferences support the trial court’s decision, we
must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.
2013), trans. denied.
The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution. In re C.G., 954
N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are not absolute and must
be subordinated to the child’s interests when determining the proper disposition of a
petition to terminate parental rights. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013).
In addition, although the right to raise one’s own child should not be terminated solely
because there is a better home available for the child, parental rights may be terminated
when a parent is unable or unwilling to meet his or her parental responsibilities. Id.
Before an involuntary termination of parental rights may occur, the State is required
to allege and prove, among other things:
(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.
11 Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these allegations
in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d
1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if the court finds
that the allegations in a petition described in section 4 of this chapter are true, the court
shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).
Father argues that the juvenile court erred in terminating his parental rights because
DCS failed to prove by clear and convincing evidence that termination was in the best
interests of Child. He contends that the evidence presented did not support the juvenile
court’s finding that permanency considerations justified termination of Father’s parental
rights. He alleges that questions existed as to whether adoption by R.T. and Ra. T. was in
Child’s best interests because the GAL did not support such a placement. Because of these
concerns about adoption by R.T. and Ra. T., Father asserts that the evidence was not
sufficient to support the termination of his parental rights.
Initially, to the extent that Father contends that DCS failed to prove by clear and
convincing evidence that there was a reasonable probability that the continuation of the
parent-child relationship posed a threat to the well-being of Child, Father has waived such
argument. Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly
effectuate the termination of parental rights, the juvenile court need only find that one of
the three requirements of subsection (b)(2)(B) has been established by clear and convincing
evidence. A.D.S., 987 N.E.2d at 1156. The juvenile court found both that there was a
reasonable probability that the conditions that resulted in the removal of Child would not
be remedied and that the continuation of the parent-child relationship posed a threat to
Child’s well-being. Because Father does not raise any argument that there was insufficient 12 evidence to support the conclusion that the conditions that resulted in the removal of Child
and continued placement outside her home would not be remedied, he has waived any
argument that DCS did not prove the elements under Indiana Code section 31-35-2-
4(b)(2)(B), since it is written in the disjunctive. As the juvenile court found both in this
case, and Father only challenges one of the requirements, he implicitly concedes that DCS
proved the other element by clear and convincing evidence.
Father’s next argument is that insufficient evidence was presented to prove that
termination was in the best interests of the child. In determining what is in the best interests
of the child, the trial court is required to look at the totality of the evidence. In re A.K., 924
N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re D.D., 804 N.E.2d at 267), trans.
dismissed. In doing so, the trial court must subordinate the interests of the parents to those
of the child involved. Id. Termination of a parent-child relationship is proper where the
child’s emotional and physical development is threatened. Id. (citing 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 her physical, mental, and social development is
permanently impaired before terminating the parent-child relationship. Id. Additionally,
a child’s need for permanency is an important consideration in determining the best
interests of a child, and the testimony of the service providers may support a finding that
termination is in the child’s best interests. Id. (citing McBride v. Monroe Cnty. Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).
Here, the record reflects that Father has never personally provided care for Child,
nor has he personally met Child. He had been convicted of his burglary charges on
November 11, 2011, about two weeks after Child was born, and was then sentenced to fifty 13 years in the DOC. Prior to this conviction, Father had an extensive criminal history. Child
was only about seven months old at the time of her May 30, 2012 removal and has been in
at least three different placements since DCS became involved. Father was in no position
to personally care for Child. Father admits that he “obviously cannot care for [Child]
himself, in light of his lengthy incarceration.” Appellant’s Br. at 25. At the time of the
termination hearing, Child was placed with R.T. and Ra. T. where she had stability and
safety. Child was also in placement with her half-siblings, to whom she was very attached.
Although the GAL did not agree with DCS as to who should adopt Child, the GAL
did agree with the permanency plan of adoption. Tr. at 115. FCM Anderson testified that
she did not believe it was in Child’s best interest to be moved from her current home
because Child was bonded with her siblings and with R.T. and Ra. T. and “she loves it
there.” Id. at 60. At the time of the termination hearing, Child had been with R.T. and Ra.
T. for almost a year.
It appears that the crux of Father’s argument is that he wanted to be able to choose
who adopts Child. However, as set forth above, this was not an issue before the juvenile
court in the termination proceeding because placement with a particular person would not
have precluded the termination of Father’s parental rights. DCS is only required to
establish that there is a satisfactory plan for the care and treatment of the child in
termination proceedings. In re B.M., 913 N.E.2d at 1287. This court has held that adoption
is a satisfactory plan for the care and treatment of a child under the termination of parental
rights statute. Id. Therefore, as DCS presented adoption as the satisfactory plan for Child’s
care, Father’s argument fails. We conclude that sufficient evidence was presented to prove
that termination of Father’s parental rights was in the best interests of Child. 14 We will 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.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting In re Egly, 592
N.E.2d 1232, 1235 (Ind. 1992)). Based on the record before us, we cannot say that the
juvenile court’s termination of Father’s parental rights to Child was clearly erroneous.
Further, Father’s arguments are merely a request for us to reweigh the evidence and judge
the credibility of the witnesses, which we cannot do on appeal. In re D.D., 804 N.E.2d at
265. We therefore affirm the juvenile court’s judgment.
Affirmed.
BAKER, J., and ROBB, J., concur.