MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jan 30 2017, 10:08 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- January 30, 2017 Child Relationship of: Court of Appeals Case No. 21A01-1609-JT-2108 C.H. (Minor Child), Appeal from the Fayette Circuit and Court D.S. (Father), The Honorable Beth A. Butsch, Appellant-Respondent, Judge Trial Court Cause No. v. 21C01-1601-JT-15
The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 1 of 8 Pyle, Judge.
Statement of the Case [1] D.S. (“Father”) appeals the termination of the parent-child relationship with his
son, C.H. (“C.H.”), claiming that there is insufficient evidence to support the
termination because the Department of Child Services (“DCS”) failed to prove
by clear and convincing evidence that termination of the parent-child
relationship is in C.H.’s best interests.1 Concluding that there is sufficient
evidence to support the trial court’s decision to terminate the parent-child
relationship, we affirm the trial court’s judgment.
[2] We affirm.
Issue Whether there is sufficient evidence to support the termination of the parent-child relationship.
Facts [3] Father was incarcerated for dealing heroin in late 2014 or early 2015. When
C.H. was born in January 2015, his urine tested positive for opiates and
methadone. Mother admitted that she had used heroin while she was pregnant.
While C.H. was hospitalized with withdrawal symptoms, DCS filed a petition
alleging that he was a child in need of services (“CHINS”) in February 2015.
1 C.H.’s mother (“Mother”) is not a party to this appeal.
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 2 of 8 At the March 2015 initial hearing, Father admitted that C.H. was a CHINS. In
January 2016, DCS filed a petition to terminate both parents’ parental rights.
[4] Evidence presented at the August 2016 hearing revealed that Father had never
met C.H. Father testified that he had no relationship with C.H. Father’s
earliest release date from the Miami Valley Correctional Facility (“Miami
Valley”) was April 20, 2017. He had attempted to get a “time cut” on his
sentence, but it was denied because he had a previous write-up for fighting at
the county jail. (Tr. 15). Father testified that upon his release from prison, he
planned to live with his brother and work at some sort of job his Miami Valley
friends had “lined up” for him. (Tr. 16). Father also testified that he had
completed two parenting programs at the county jail and one at Miami Valley.
[5] DCS Family Case Manager Doreen Hayes (“Case Manager Hayes”) testified
that although Father had participated in these parenting programs, when she
told him that DCS was “filing to change the . . . plan for [C.H.] to adoption,”
Father told her that he did not want to participate in any further services.
Specifically, Father told Case Manager Hayes that he “was just done.” (Tr. 29).
She further testified that adoption, and therefore termination, was in C.H.’s best
interests because of the length of time he had already been removed from his
parents and his need for permanency. Case Manager Hayes also shared her
concerns that Father was unable to provide stable housing and income for
C.H.’s basic needs. CASA Michelle Richardson also recommended
termination of Father’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 3 of 8 [6] In August 2016, the trial court issued an order terminating Father’s parental
rights. Father appeals the termination.
Decision [7] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re
K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for
termination of that right when parents are unwilling or unable to meet their
parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The
purpose of terminating parental rights is not to punish the parents but to protect
their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.
denied.
[8] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship 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. Id. at 1229-30.
[9] A petition to terminate parental rights must allege:
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 4 of 8 (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). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[10] Here, Father’s sole contention is that there is insufficient evidence to support
the termination because the State failed to prove by clear and convincing
evidence that termination is in C.H.’s best interests. In support of his
contention, he directs us to In re the Involuntary Termination of the Parent-Child
Relationship of R.S., 56 N.E.3d 625 (Ind. 2016), where the Indiana Supreme
Court reversed a termination of parental rights after concluding that the State
had failed to prove that termination was in R.S.’s best interests.
[11] However, the facts in R.S. are distinguishable from the facts of this case. R.S.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jan 30 2017, 10:08 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- January 30, 2017 Child Relationship of: Court of Appeals Case No. 21A01-1609-JT-2108 C.H. (Minor Child), Appeal from the Fayette Circuit and Court D.S. (Father), The Honorable Beth A. Butsch, Appellant-Respondent, Judge Trial Court Cause No. v. 21C01-1601-JT-15
The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 1 of 8 Pyle, Judge.
Statement of the Case [1] D.S. (“Father”) appeals the termination of the parent-child relationship with his
son, C.H. (“C.H.”), claiming that there is insufficient evidence to support the
termination because the Department of Child Services (“DCS”) failed to prove
by clear and convincing evidence that termination of the parent-child
relationship is in C.H.’s best interests.1 Concluding that there is sufficient
evidence to support the trial court’s decision to terminate the parent-child
relationship, we affirm the trial court’s judgment.
[2] We affirm.
Issue Whether there is sufficient evidence to support the termination of the parent-child relationship.
Facts [3] Father was incarcerated for dealing heroin in late 2014 or early 2015. When
C.H. was born in January 2015, his urine tested positive for opiates and
methadone. Mother admitted that she had used heroin while she was pregnant.
While C.H. was hospitalized with withdrawal symptoms, DCS filed a petition
alleging that he was a child in need of services (“CHINS”) in February 2015.
1 C.H.’s mother (“Mother”) is not a party to this appeal.
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 2 of 8 At the March 2015 initial hearing, Father admitted that C.H. was a CHINS. In
January 2016, DCS filed a petition to terminate both parents’ parental rights.
[4] Evidence presented at the August 2016 hearing revealed that Father had never
met C.H. Father testified that he had no relationship with C.H. Father’s
earliest release date from the Miami Valley Correctional Facility (“Miami
Valley”) was April 20, 2017. He had attempted to get a “time cut” on his
sentence, but it was denied because he had a previous write-up for fighting at
the county jail. (Tr. 15). Father testified that upon his release from prison, he
planned to live with his brother and work at some sort of job his Miami Valley
friends had “lined up” for him. (Tr. 16). Father also testified that he had
completed two parenting programs at the county jail and one at Miami Valley.
[5] DCS Family Case Manager Doreen Hayes (“Case Manager Hayes”) testified
that although Father had participated in these parenting programs, when she
told him that DCS was “filing to change the . . . plan for [C.H.] to adoption,”
Father told her that he did not want to participate in any further services.
Specifically, Father told Case Manager Hayes that he “was just done.” (Tr. 29).
She further testified that adoption, and therefore termination, was in C.H.’s best
interests because of the length of time he had already been removed from his
parents and his need for permanency. Case Manager Hayes also shared her
concerns that Father was unable to provide stable housing and income for
C.H.’s basic needs. CASA Michelle Richardson also recommended
termination of Father’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 3 of 8 [6] In August 2016, the trial court issued an order terminating Father’s parental
rights. Father appeals the termination.
Decision [7] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re
K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for
termination of that right when parents are unwilling or unable to meet their
parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The
purpose of terminating parental rights is not to punish the parents but to protect
their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.
denied.
[8] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship 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. Id. at 1229-30.
[9] A petition to terminate parental rights must allege:
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 4 of 8 (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). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[10] Here, Father’s sole contention is that there is insufficient evidence to support
the termination because the State failed to prove by clear and convincing
evidence that termination is in C.H.’s best interests. In support of his
contention, he directs us to In re the Involuntary Termination of the Parent-Child
Relationship of R.S., 56 N.E.3d 625 (Ind. 2016), where the Indiana Supreme
Court reversed a termination of parental rights after concluding that the State
had failed to prove that termination was in R.S.’s best interests.
[11] However, the facts in R.S. are distinguishable from the facts of this case. R.S.
was an eleven-year-old boy who had a close bond with his father. Id. at 629-30.
R.S.’s father exercised regular visitation with R.S. and repeatedly expressed his
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 5 of 8 desire to parent his son. Id. at 630. Both the GAL and the trial court believed
that visitation between R.S. and his father was in R.S.’s best interests. Id. at
628, 630. On the other hand, in this case, Father has never met C.H. because
Father was in jail for dealing heroin when C.H. was born with opiates and
methadone in his system. Furthermore, Father admitted that he had no
relationship with his toddler son. Also, when Caseworker Hayes told Father
that DCS was filing to change the plan for C.H. to adoption, Father responded
that he “was just done.” (Tr. 29). In addition, the CASA recommended
termination of the parent-child relationship.
[12] We find Castro v. State Office of Family and Children, 842 N.E.2d 367 (Ind. Ct.
App. 2006), trans. denied, to be more instructive. There, Castro had been
incarcerated for the entire lifetime of his daughter, T.P. In September 2004,
when T.P. was eight years old, DCS filed a petition to terminate the parental
relationship between T.P. and both parents. The evidence at the termination
hearing revealed that Castro had held T.P. in his arms one time and had seen
her approximately ten other times while incarcerated in the county jail. After
he was sentenced to the Department of Correction, he had also written T.P.
letters, which were conveyed to her through her therapist. The evidence further
revealed that while incarcerated, Castro had received a Bachelor of General
Studies degree and completed parenting and anger management courses. His
release date was May 2012.
[13] After hearing the evidence, the trial court issued an order terminating Castro’s
parental rights. Castro appealed and argued that DCS had failed to present
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 6 of 8 clear and convincing evidence that termination of the parent-child relationship
was in T.P.’s best interests. We noted that a parent’s historical inability to
provide adequate housing and supervision coupled with a current inability to
provide the same would support a finding that termination of the parent-child
relationship is in the child’s best interests. Id. at 374. Because he had been
incarcerated since before T.P.’s birth, we concluded that Castro had historically
been unable to provide adequate housing, stability, and supervision for her. Id.
Likewise, Castro’s continued incarceration at the time of the June 2005
termination hearing was strong evidence of his current inability to provide the
same. Id.
[14] We further 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.’” Id. (quoting Matter of A.C.B., 598 N.E.2d
570, 572 (Ind. Ct. App. 1992)). We also noted that there was no guarantee that
Castro would be a suitable parent once he was released or that he would even
obtain custody. Id. Even assuming Castro would eventually develop into a
suitable parent, we had to ask how much longer T.P. had to wait to enjoy the
permanency that was essential to her development. Id. at 375. In light of this
evidence, we concluded that the trial court’s conclusion that termination of
Castro’s parental rights was in T.P.’s best interests was supported by clear and
convincing evidence. We further concluded that there was sufficient evidence
to support the termination of the parent-child relationship. Id.
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 7 of 8 [15] Here, as in Castro, Father has historically been unable to provide adequate
housing, stability, and supervision for C.H. Likewise, his continued
incarceration at the time of the termination hearing is strong evidence of his
current inability to provide the same. Father has been incarcerated since C.H.
was born with opiates in his system. Without stable housing and employment,
there is no guarantee that Father would be a suitable parent once he was
released or that he would even obtain custody. In light of this evidence, here,
as in Castro, we conclude that the trial court’s determination is supported by
clear and convincing evidence, and there is therefore sufficient evidence to
support the termination.
[16] Affirmed.
Baker, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017 Page 8 of 8