MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 23 2015, 8:44 am
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chris M. Teagle Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana
Robert J. Henke James D. Boyer Deputies Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 23, 2015 of the Parent-Child Relationship Court of Appeals Case No. of T.B. & K.B. (Children) and 05A02-1505-JT-480 T.B., Sr. (Father); Appeal from the Blackford Circuit Court T.B., Sr. (Father), The Honorable Dean A. Young, Appellant-Respondent, Judge Trial Court Cause No. v. 05C01-1411-JT-79 05C01-1411-JT-80 The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 1 of 8 May, Judge.
[1] T.B., Sr. (“Father”) appeals the involuntary termination of his parental rights to
T.B. and K.B. (collectively, “Children”). He argues the Department of Child
Services (DCS) did not prove the conditions under which Children were
removed would not be remedied. We affirm.
Facts and Procedural History [2] Father and S.M. 1 (“Mother”) are the parents of T.B., born March 29, 2007, and
K.B., born November 11, 2008. Mother and Father never married, but Father
acknowledged paternity of Children. On July 15, 2013, DCS filed petitions to
adjudicate Children as Children in Need of Services (CHINS) because domestic
violence between Mother and her boyfriend occurred in the presence of
Children, Mother’s boyfriend used drugs in the home, and Father was
incarcerated. Mother agreed to cease contact with her boyfriend, and the court
permitted Children to stay in the home. On August 13, 2013, Children were
removed from the home and placed with relatives because Mother violated a
court order requiring her to keep Children in Shelby County.
[3] The trial court held an initial hearing on the July 15 CHINS petition on August
29, 2013, and Father appeared telephonically because he was incarcerated. 2 He
1 The court also terminated Mother’s parental rights. Mother does not participate in this appeal. 2 The record before us was difficult to review because two of the exhibits the parties relied on were over one hundred pages and did not have page numbers. In addition, Father did not include one of the termination orders in his appendix, though DCS provided it in its Appellee’s Appendix.
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 2 of 8 denied the allegations of the CHINS petition. On October 3, 2013, the trial
court held a fact-finding hearing and adjudicated Children as CHINS based on
Parents’ admissions. It transferred the case to Blackford County. Children
were initially placed with two different sets of relatives, and in February 2014,
Children were moved to foster care, where they resided for the rest of the
CHINS and TPR proceedings.
[4] The dispositional hearing was delayed multiple times due to Mother’s failure to
appear and Father’s incarceration. On May 14, 2014, the trial court held a
dispositional hearing. On May 20, 2014, the trial court issued an order requiring
Father to, among other things, refrain from drug use; submit to random drug
screens; complete a substance evaluation and follow recommendations;
complete a parenting assessment and follow recommendations; visit with
Children; and complete the services ordered as part of a prior CHINS case in
Rush County, including the Fatherhood Engagement Program.
[5] On November 14, 2014, the trial court ordered Children’s permanency plans
changed from reunification to termination of parental rights and adoption by
foster parents. On November 25, 2014, DCS filed petitions to terminate
Father’s parental rights to Children. The trial court held a fact-finding hearing
on the termination petitions on April 29, 2015. On May 18, 2015, the trial
court terminated Father’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 3 of 8 Discussion and Decision [6] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of 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 most favorable to the judgment. Id. In deference to the
juvenile court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
[7] When, as here, a 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). We determine first
whether the evidence supports the findings and second whether the findings
support the judgment. Id. “Findings are clearly erroneous only when the
record contains 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 juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at
208.
[8] “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 M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 4 of 8 subordinate the interests of the parents to those of the child, however, when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own child should not be terminated solely
because there is a better home available for the child, id., but parental rights
may be terminated when a parent is unable or unwilling to meet his or her
parental responsibilities. Id. at 836.
[9] To terminate a parent-child relationship, the State must allege and prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 23 2015, 8:44 am
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chris M. Teagle Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana
Robert J. Henke James D. Boyer Deputies Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 23, 2015 of the Parent-Child Relationship Court of Appeals Case No. of T.B. & K.B. (Children) and 05A02-1505-JT-480 T.B., Sr. (Father); Appeal from the Blackford Circuit Court T.B., Sr. (Father), The Honorable Dean A. Young, Appellant-Respondent, Judge Trial Court Cause No. v. 05C01-1411-JT-79 05C01-1411-JT-80 The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 1 of 8 May, Judge.
[1] T.B., Sr. (“Father”) appeals the involuntary termination of his parental rights to
T.B. and K.B. (collectively, “Children”). He argues the Department of Child
Services (DCS) did not prove the conditions under which Children were
removed would not be remedied. We affirm.
Facts and Procedural History [2] Father and S.M. 1 (“Mother”) are the parents of T.B., born March 29, 2007, and
K.B., born November 11, 2008. Mother and Father never married, but Father
acknowledged paternity of Children. On July 15, 2013, DCS filed petitions to
adjudicate Children as Children in Need of Services (CHINS) because domestic
violence between Mother and her boyfriend occurred in the presence of
Children, Mother’s boyfriend used drugs in the home, and Father was
incarcerated. Mother agreed to cease contact with her boyfriend, and the court
permitted Children to stay in the home. On August 13, 2013, Children were
removed from the home and placed with relatives because Mother violated a
court order requiring her to keep Children in Shelby County.
[3] The trial court held an initial hearing on the July 15 CHINS petition on August
29, 2013, and Father appeared telephonically because he was incarcerated. 2 He
1 The court also terminated Mother’s parental rights. Mother does not participate in this appeal. 2 The record before us was difficult to review because two of the exhibits the parties relied on were over one hundred pages and did not have page numbers. In addition, Father did not include one of the termination orders in his appendix, though DCS provided it in its Appellee’s Appendix.
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 2 of 8 denied the allegations of the CHINS petition. On October 3, 2013, the trial
court held a fact-finding hearing and adjudicated Children as CHINS based on
Parents’ admissions. It transferred the case to Blackford County. Children
were initially placed with two different sets of relatives, and in February 2014,
Children were moved to foster care, where they resided for the rest of the
CHINS and TPR proceedings.
[4] The dispositional hearing was delayed multiple times due to Mother’s failure to
appear and Father’s incarceration. On May 14, 2014, the trial court held a
dispositional hearing. On May 20, 2014, the trial court issued an order requiring
Father to, among other things, refrain from drug use; submit to random drug
screens; complete a substance evaluation and follow recommendations;
complete a parenting assessment and follow recommendations; visit with
Children; and complete the services ordered as part of a prior CHINS case in
Rush County, including the Fatherhood Engagement Program.
[5] On November 14, 2014, the trial court ordered Children’s permanency plans
changed from reunification to termination of parental rights and adoption by
foster parents. On November 25, 2014, DCS filed petitions to terminate
Father’s parental rights to Children. The trial court held a fact-finding hearing
on the termination petitions on April 29, 2015. On May 18, 2015, the trial
court terminated Father’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 3 of 8 Discussion and Decision [6] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of 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 most favorable to the judgment. Id. In deference to the
juvenile court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
[7] When, as here, a 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). We determine first
whether the evidence supports the findings and second whether the findings
support the judgment. Id. “Findings are clearly erroneous only when the
record contains 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 juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at
208.
[8] “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 M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 4 of 8 subordinate the interests of the parents to those of the child, however, when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own child should not be terminated solely
because there is a better home available for the child, id., but parental rights
may be terminated when a parent is unable or unwilling to meet his or her
parental responsibilities. Id. at 836.
[9] To terminate a parent-child relationship, the State must allege and prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been under the supervision of a county office of family and children or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(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.
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 5 of 8 (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). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[10] DCS does not have to prove both a reasonable probability the conditions that
resulted in Child’s removal will not be remedied and the continuation of the
parent-child relationship between Father and Child posed a threat to the well-
being of Children. The statute is written in the disjunctive, and DCS must
prove either by clear and convincing evidence. See Ind. Code § 31-35-2-4.
Father argues DCS did not prove the conditions that resulted in Children’s
removal would not be remedied. He does not contest the trial court’s findings
supporting its conclusion the continuation of the parent-child relationship posed
a threat to the well-being of Children. As DCS is required to prove only one of
these requirements, and Father does not challenge the trial court’s findings and
conclusions regarding the well-being of Children, we need not address that
provision.
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 6 of 8 [11] DCS presented sufficient evidence to terminate Father’s parental rights to
Children. Father was incarcerated for fifteen of the twenty-one months
Children were removed from Mother’s home. During the proceedings, Father
was arrested for possession of methamphetamine, marijuana, and related
paraphernalia, and violated probation for an earlier methamphetamine
conviction in Rush County. While Father completed substance abuse and
parenting assessments in July 2014, he did not follow through with the
recommendations of the assessments such as participation in substance abuse
treatment, NA/AA meetings, and therapy. Father testified he completed
substance abuse treatment while incarcerated but did not provide
documentation. On his release from incarceration, Father participated in
supervised visits with Children, but visits had to be reduced to once a week
because Father cancelled many visits. Father’s last visit with Children was July
9, 2014. Father’s arguments highlighting his compliance with some of the
requirements of his parental participation decree are invitations for us to
reweigh the evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265
(appellate court does not reweigh evidence or judge the credibility of
witnesses). 3 As such, DCS presented sufficient evidence to terminate Father’s
parental rights to Children.
3 Father argues he “was not given appropriate opportunity to remedy the issues that were the basis for DCS’ petition to terminate Father’s parental rights.” (Br. of Appellant at 1.) He claims DCS and the trial court “failed to grant Father the adequate time and opportunity to improve the situations for both himself, and T.B. and K.B.” (Id. at 11.) These arguments appear to be related to services offered as part of the CHINS adjudication, which we cannot consider as part of a termination appeal. See In re H.L., 915 N.E.2d 145, 148
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 7 of 8 Conclusion [12] DCS provided sufficient evidence to support the trial court’s decision to
terminate Father’s parental rights to Children. Accordingly, we affirm.
[13] Affirmed.
Najam, J., and Riley, J., concur.
n.3 (Ind. Ct. App. 2009) (“failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law”).
Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015 Page 8 of 8