In the Matter of the Termination of the Parent-Child Relationship of T.M., Z.M., E.M., & N.M., (Children) and S.M. (Father) S.M. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 24, 2019
• Docket: 19A-JT-1019
• 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 Sep 24 2019, 10:33 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination September 24, 2019 of the Parent-Child Relationship Court of Appeals Case No. of T.M., Z.M., E.M., & N.M., 19A-JT-1019 (Children) and S.M. (Father); Appeal from the Henry Circuit S.M. (Father), Court The Honorable Bob A. Witham, Appellant-Respondent, Judge v. Trial Court Cause No. 33C01-1901-JT-6 33C01-1901-JT-7 The Indiana Department of 33C01-1901-JT-8 Child Services, 33C01-1901-JT-9 Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 1 of 15 May, Judge.

[1] S.M. (“Father”) appeals the involuntary termination of his parental rights to

T.M., Z.M., E.M., and N.M. (collectively, “Children”). He argues the

evidence does not support four of the trial court’s findings. Additionally, he

asserts the trial court’s findings do not support its conclusions that the

conditions under which Children were removed from his care would not be

remedied, that the continuation of the parent-children relationship would

present a threat to Children’s well-being, and that termination of Father’s

parental rights was in Children’s best interests. We affirm.

Facts and Procedural History [2] Father and K.M. 1 (“Mother”) (collectively “Parents”) are the biological parents

of T.M., born November 15, 2007; Z.M., born February 22, 2010; E.M., born

August 12, 2013; and N.M., born June 20, 2017. Parents were married until

late in the proceedings. On April 28, 2016, Mother called police to report

Father had beaten her. Father was arrested, and the Department of Child

Services (“DCS”) engaged the family in an informal adjustment. As part of the

informal adjustment, Mother agreed to keep Children away from Father until

Father received therapy to address domestic violence.

1 Mother voluntarily relinquished her parental rights to Children and does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 2 of 15 [3] On June 21, 2016, DCS removed Children from Parents’ care and filed

petitions alleging T.M., Z.M., and E.M. were Children in Need of Services

(“CHINS”) based, at least in part, on the domestic violence perpetrated by

Father upon Mother. On August 12, 2016, Mother and Father admitted

Children were CHINS and the trial court adjudicated Children as such. The

trial court also entered a dispositional order that day.

[4] From July 2016 to November 2, 2016, Father engaged in some services,

however, he was aggressive with DCS staff members during some of those

services. On July 15, 2016, Father went to his mother-in-law’s house and

would not leave after being asked to do so. He was charged with criminal

trespass and pled guilty to that charge on July 20, 2016. On September 8, 2016,

Father pled guilty to Class A misdemeanor domestic battery stemming from the

April 28, 2016, incident with Mother. On November 2, 2016, Father told DCS

that he wanted to voluntarily relinquish his parental rights to T.M., Z.M., and

E.M. He later retracted that request.

[5] On December 11, 2016, Father broke a window at Mother’s house and yelled at

Mother. He was charged with criminal trespass, criminal mischief, and

invasion of privacy. He pled guilty to those charges on March 14, 2017.

Additionally, on March 14, 2017, Father pled guilty to invasion of privacy and

violation of a protective order based on an incident involving Mother on

January 3, 2017.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 3 of 15 [6] On March 28, 2017, Father kicked in the door to Mother’s apartment, spit in

her face, and took her phone when she tried to call 911. The State charged him

with residential entry, domestic battery, interference with the reporting of a

crime, criminal mischief, and domestic battery with an unrelated prior

conviction. Father pled guilty to these charges on August 8, 2017.

[7] On June 20, 2017, N.M. was born and on June 23, 2017, N.M. was removed

from Parents’ custody because the other children in the household had been

adjudicated as CHINS. On June 27, 2017, DCS filed a petition alleging N.M.

was a CHINS. The trial court adjudicated N.M. as a CHINS on July 14, 2017.

The trial court entered a dispositional decree in N.M.’s CHINS matter on

September 6, 2017.

[8] On September 9, 2017, Father slammed Mother into a wall. On October 3,

2017, Father pled guilty to criminal trespass for sleeping on Mother’s porch.

On July 27, 2018, Father pled guilty to invasion of privacy for the September 9

incident, and the trial court sentenced him to 600 days in jail. Father was

incarcerated at the time of the termination fact-finding hearing.

[9] On July 3, 2018, the trial court changed the permanency plan for T.M., Z.M.,

and E.M. from reunification to adoption by their foster parents. On December

21, 2018, the trial court changed the permanency plan for N.M. from

reunification to adoption by her foster parents. On January 10, 2019, DCS filed

petitions to terminate the parental rights of both Mother and Father. The trial

court held a fact-finding hearing on April 1, 2019, during which Mother

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 4 of 15 voluntarily relinquished her parental rights to Children. On April 4, 2019, the

trial court issued an order involuntarily terminating Father’s parental rights to

Children.

Discussion and Decision [10] We review termination of parental rights with great deference. In re K.S., 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).

[11] “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

subordinate the interests of the parents to those of the children when evaluating

the circumstances surrounding a termination. In re K.S., 750 N.E.2d at 837.

The right to raise one’s own children should not be terminated solely because

there is a better home available for the children, id., but parental rights may be

terminated when a parent is unable or unwilling to meet parental

responsibilities. Id. at 836.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 5 of 15 [12] To terminate a parent-child relationship, the State must allege and prove:

(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.

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.

Challenged Findings [13] When, as here, a judgment contains specific findings of fact and conclusions

thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 6 of 15 evidence supports the findings and 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.

[14] Father challenges four of the trial court’s findings, arguing they are not

supported by the evidence. We accept the remaining findings as true because

Father does not dispute them. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind.

1992) (“Because Madlem does not challenge the findings of the trial court, they

must be accepted as correct.”).

Finding 7

[15] Finding 7 states, in relevant part: “DCS filed a CHINS petition as to [Children]

. . . after [Mother] failed to comply with the safety plan of the Informal

Adjustment: to keep [Father] out of the home until he had completed services

to deal with domestic aggression.” (App. Vol. II at 14.) Father argues Finding

7 is not supported by the evidence. However, during the termination hearing,

Mother testified:

[DCS]: And part of the informal adjustment you were to keep the children safely away from [Father] until he had therapy. Is that right?

[Mother]: Yes.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 7 of 15 [DCS]: Then there arose some issues with regard to your health and the children were taken from your care.

(Tr. Vol. II at 29.) Father contends Mother’s testimony proves Children were

not removed from Mother’s care because of the domestic violence issues in the

home, but because of Mother’s health issues.

[16] However, the trial court made multiple findings that Father does not challenge

regarding the ongoing domestic violence issues between Mother and Father,

including:

6. DCS had previously been working with the family as a result of domestic battery, with which [Father] was charged and convicted[.]

*****

31. [Father] has been charged with and convicted of eight (8) separate criminal cases, all of which involved as victims [Mother] or her mother, [D.W.].

(App. Vol. II at 148-9.) Father admitted during the fact-finding hearing that he

had been convicted twice for domestic battery against Mother, twice for

invasion of privacy against Mother, and once each for trespass, residential

entry, and criminal confinement against Mother. Other evidence regarding

Father’s criminal history was admitted including Chronological Case

Summaries, probable cause affidavits, and orders of conviction regarding these

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 8 of 15 crimes. Therefore, it is reasonable to infer that Children were, at least in part,

removed from the familial home due to domestic violence perpetrated by

Father. See Madlem, 592 N.E.2d at 687 (Ind. 1992) (“Because Madlem does not

challenge the findings of the trial court, they must be accepted as correct.”); see

In re L.S., 717 N.E.2d at 208 (appellate court will affirm if evidence and

inferences therefrom support finding).

Finding 25

[17] Finding 25 states “DCS has offered a number of services to [Mother] and

[Father] to bring about reunification of [Children] with one or both of their

parents.” (App. Vol. II at 149.) Father contends this finding is “wholly

unsupported by the evidence.” (Br. of Father at 11.) However, DCS presented

a permanency report from the CHINS case that indicated Father was offered

“Sowers of Seeds Batters Intervention; clinical interview/assessment for

psychological/psychiatric services; home-based casework; and home-based

therapy.” (DCS Ex. 7). Additionally, during the fact-finding hearing, the

Family Case Manager testified, “I had multiple conversations with [Father]

about his willingness to engage in services. Sometimes he said that he would

engage in services and I had referred him to services.” (Tr. Vol. II at 46.)

Finally, during the fact-finding hearing, Father answered in the affirmative

when asked, “During the time of your involvement with DCS beginning in

2016 have you at least on one occasion told DCS workers that you will not

involve yourself in services that were offered without cost to you?” (Id. at 38.)

Father’s argument is an invitation for us to reweigh the evidence and judge the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 9 of 15 credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

(appellate court will not reweigh evidence or judge the credibility of witnesses). 2

Finding 26

[18] Finding 26 states, “[Father] has failed to comply with services and has spent a

portion of the time the cases have been open as an incarcerated person.” (App.

Vol. II at 149.) Father argues that although DCS admitted evidence of Father’s

criminal history during the CHINS case, “one cannot discern from these

documents precisely how much time Father spent incarcerated during the

CHINS proceedings.” (Br. of Father at 11.) During the fact-finding hearing,

DCS presented evidence that Father was incarcerated at the time of the hearing,

though he recently had been admitted to the hospital for psychiatric services.

Additionally, the Family Case Manager testified visitations between Father and

Children had been terminated because Father was incarcerated. Finally, one of

the Family Case Managers testified she could not engage Father in services

during the CHINS case because he was incarcerated. Father’s argument is an

invitation for us to reweigh the evidence, which we cannot do. See In re D.D.,

804 N.E.2d at 265 (appellate court will not reweigh evidence or judge the

credibility of witnesses).

2 Additionally, we do not review the adequacy of services provided during CHINS proceedings when reviewing the propriety of a termination order. See In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015) (noting requirement for DCS to provide reasonable services was not a requisite element of parental rights termination statute and DCS’s failure to provide services could not serve as basis to attack termination order), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 10 of 15 Finding 35

[19] Finding 35 states, “Continuation of the parent-child relationship between all

four children and [Father] would disallow the children from establishing

permanency of where and with whom they belong.” (App. Vol. II at 150.)

However, the two preceding findings, which Father does not challenge, report

Children’s well-being in their current placements. As this seems to be the

subject of the challenged finding, we conclude any error in its inclusion is mere

surplusage and not grounds for reversal of the termination order. See Lasater v.

Lasater, 809 N.E.2d 380, 398 (Ind. Ct. App. 2004) (“Findings, even if

erroneous, do not warrant reversal if they amount to mere surplusage and add

nothing to the trial court’s decision.”).

Reasonable Probability Conditions Would Not Be Remedied [20] The trial court must judge a parent’s fitness to care for his child at the time of

the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

Evidence of a parent’s pattern of unwillingness or lack of commitment to

address parenting issues and to cooperate with services “demonstrates the

requisite reasonable probability” that conditions will not change. Lang v. Starke

Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Father

argues the trial court’s findings do not support its conclusion that there existed a

reasonable probability that the conditions under which Children were removed

from Father’s care would not be remedied.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 11 of 15 [21] The trial court found that Father battered Mother on at least one occasion in

Children’s presence and that domestic violence was, at least in part, the reason

for Children’s removal from the familial home. Further, DCS presented

evidence that Father was to complete treatment called “Sowers of Seeds Batters

[sic] Intervention,” (DCS Ex. 7), and he did not. Additionally, the trial court’s

unchallenged findings regarding Father’s fitness to care for Children include:

27. [Father] has been recently been [sic] hospitalized for approximately two weeks for in-patient treatment at Ball Memorial Hospital Psychiatric Unit.

28. [Father] testified that he does not know what caused his need for in-patient treatment and that he was not given a diagnosis upon release from his stay at the Psychiatric Unit.

29. [Father] admits that there have been more than two periods since the inception of [Children’s] CHINS cases during which he has been homeless for at least sixty (60) days.

30. [Father] has not had a consistent home, at the same address in his own name and funded solely by resources that he has legally acquired for any period of six (6) months or longer since July of 2016.

(App. Vol. II at 149.) The evidence and findings indicate Father’s inability to

care for Children and his refusal to complete services to address the issues

which precipitated Children’s removal. Therefore, the findings support the trial

court’s conclusion that there was a reasonable possibility that the conditions

under which Children were removed from the familial home would not be

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 12 of 15 remedied. See In re E.M., 4 N.E.3d 636, 644 (Ind. 2014) (termination

appropriate when Children were removed due to domestic violence issues and

Father refused to complete services). 3

Children’s Best Interests [22] In determining what is in Children’s best interests, a trial court is required to

look beyond the factors identified by DCS and consider the totality of the

evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.

A parent’s historical inability to provide a suitable environment, along with the

parent’s current inability to do so, supports finding termination of parental

rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990

(Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-

appointed advocate to terminate parental rights, in addition to evidence that

conditions resulting in removal will not be remedied, are sufficient to show by

clear and convincing evidence that termination is in Children’s best interests. In

re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

[23] Father contends termination of his parental rights is not in Children’s best

interests because the “scant evidence revealed during a hasty proceeding did not

3 Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need decide only if the evidence and findings support the trial court’s conclusion as to one of these two requirements. See In re L. S., 717 N.E.2d at 209 (because statute written in disjunctive, court needs to find only one requirement to terminate parental rights). Because the trial court’s findings supported its conclusion that the conditions under which Children were removed from Father’s care would be not be remedied, we need not consider Father’s argument regarding whether the continuation of the Father-Children relationship poses a risk to Children’s well-being.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 13 of 15 support the court’s conclusion that permanent, irreversible termination of a

biological father’s parental rights as to his four children was in the children’s

best interests.” (Br. of Father at 16.) We disagree. While DCS certainly could

have been more thorough, the record before us provides evidence that Father

battered Mother, Father was incarcerated for various crimes during the

proceedings, Father did not complete services, Father did not have stable

housing or employment, and Children were doing well in their current

placement. Additionally, the Family Case Managers and the Court Appointed

Special Advocate testified that termination of Father’s parental rights was in

Children’s best interests. Therefore, we conclude the evidence and findings

were sufficient to support the trial court’s conclusion that termination of

Father’s parental rights was in Children’s best interests. See In re A.D.W., 907

N.E.2d 533, 540 (Ind. Ct. App. 2008) (affirming termination of mother’s

parental rights because family case manager testified termination was in

children’s best interests and children were doing well in their placement).

Conclusion [24] DCS presented evidence to support Findings 7, 25, and 26. Finding 35 was

surplusage and, thus, not a basis for reversal. Additionally, the findings

supported the trial court’s conclusions that the conditions under which Children

were removed from Father’s care would not be remedied and that termination

was in Children’s best interests. Accordingly, we affirm.

[25] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 14 of 15 Najam, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019 Page 15 of 15