In the Termination of the Parent-Child Relationship of: S.J. & T.J., III and U.J. (Minor Children), And T.J., Jr. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 6, 2017
• Docket: 49A02-1706-JT-1200
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 06 2017, 9:48 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Edgar Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

James D. Boyer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- November 6, 2017 Child Relationship of: Court of Appeals Case No. 49A02-1706-JT-1200 S.J. & T.J., III and U.J. (Minor Children), Appeal from the Marion Superior Court And The Honorable Marilyn A. T.J., Jr. (Father) Moores, Judge Appellant-Respondent, The Honorable Larry E. Bradley, Magistrate v. Trial Court Cause No. 49D09-1608-JT-932, 49D09-1608- Indiana Department of Child JT-933, 49D09-1608-JT-934 Services, Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 1 of 12 Altice, Judge.

Case Summary

[1] T.J., Jr. (Father), appeals following the termination of his parental rights to his

three children. On appeal, Father argues that the evidence was insufficient to

support the termination of his rights.

[2] We affirm.

Facts & Procedural History

[3] Father and E.J. (Mother)1 had three children together: S.J, born in 2009; T.J.,

III, born in 2010; and U.J., born in 2011 (collectively, the Children). The

family first came to the attention of the Department of Child Services (DCS) in

April 2011 due to a report of abuse and/or neglect. Mother and Father entered

into a six-month period of informal adjustment, pursuant to which Father was

ordered to participate in services including a drug and alcohol assessment and

random drug screens. DCS filed a petition for rule to show cause in that case

on July 27, 2011, which resulted in a three-month extension of the informal

adjustment. The informal adjustment was closed successfully on January 12,

2012.

1 Mother consented to the adoption of the Children and does not participate in this appeal. Accordingly, our recitation of the facts is limited to those pertinent to the termination of Father’s parental rights.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 2 of 12 [4] Just three months later, DCS removed the Children, placed them in foster care,

and filed petitions alleging the Children were Children in Need of Services

(CHINS). Father waived fact-finding, and the Children were adjudicated

CHINS based on Mother’s admission that she had been arrested and charged

with operating a vehicle while intoxicated and two counts of neglect of a

dependent, and a no-contact order had been entered prohibiting her from

having contact with the Children. A dispositional order was entered on June

14, 2012, pursuant to which Father was ordered to maintain suitable, safe, and

stable housing, secure and maintain a legal and stable source of income, abstain

from using alcohol or illegal drugs, complete a substance abuse assessment and

all recommendations, submit to random drug screens, engage in home-based

counseling, and attend all scheduled visits with the Children.

[5] Father failed to appear at the court’s September 20 and December 20, 2012

review hearings, and Father’s attorney indicated that he had not been able to

contact Father. Father again failed to appear at a March 28, 2013 review

hearing, and the CHINS court found that Father had failed to comply with the

Children’s case plan. Mother, on the other hand, had complied with the case

plan and been reunified with the Children. The trial court concluded that the

circumstances giving rise to the Children’s supervision had been alleviated and

therefore terminated DCS’s wardship.

[6] The CHINS case giving rise to the current termination case began in April

2015, when DCS filed a CHINS petition after Mother abandoned the Children

with Father at St. Vincent’s hospital, where he was hospitalized in the

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 3 of 12 psychiatric ward. Father indicated at that time that he did not have housing

and was unable to care for the Children. The Children were again removed and

placed in foster care. The Children were adjudicated CHINS on May 28, 2015,

based on Father’s admission and agreement to participate in services. Father

was ordered, among other things, to participate in home-based therapy and case

management, to attend supervised parenting time with the Children, and to sign

any required releases to allow DCS to monitor his compliance.

[7] DCS filed petitions to terminate Father’s parental rights to the Children on

August 8, 2016, and an evidentiary hearing was held on April 24, 2017.

Evidence presented at the termination hearing established that Father failed to

stay in contact with DCS and service providers and that his participation in

services was sporadic and incomplete. Home-based case manager Richard

Brooks supervised Father’s parenting time with the Children and provided

Father with services to help him obtain housing, employment, and mental

health treatment. Brooks testified that Father appeared to be overwhelmed and

sometimes agitated, and Father cancelled several parenting time sessions.

Additionally, because Father had no stable residence, Brooks had no way to

reach him unless Father contacted him first. Brooks terminated services in

March 2016 due to Father’s lack of contact and inconsistent participation.

[8] Father received mental health treatment at Cummins during the CHINS case,

although his participation was inconsistent and ended altogether in March

2016. Although Father signed a release, DCS was unable to obtain Father’s

treatment records from Cummins. Father testified that he had been treated for

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 4 of 12 depression and was prescribed medication, but had stopped taking his

medication in 2016 without informing his treatment providers after seeing a

news report about prescription medications and drug abuse. Thereafter, Father

treated his depression by “[r]eading.” Transcript Vol. 2 at 25. Father testified

that he had also begun monthly therapy sessions at Midtown in January 2017,

but he had not informed DCS. Father could not recall whether he had been

hospitalized for mental health treatment during the CHINS proceedings.

[9] Additionally, Father testified that he was homeless when the CHINS case

began and that he had been homeless at other times since. At the time of the

termination hearing, Father had been living in a one-bedroom apartment for a

little over a year and had worked at a retail store since January 2017. Father

did not contact anyone from DCS to ask them to come and see his apartment.

[10] Family Case Manager (FCM) Erma Watson testified that Father initially kept

in regular contact with her, but had only contacted her one time since March

2016. FCM Watson testified that Father has “gone back and forth” on whether

he is able to care for the children, sometimes stating that he cannot handle

parenting. Id. at 83. FCM Watson testified further that Father’s parenting time

was never suspended by the court, but Father never requested parenting time

again after DCS’s referral for supervised visitation closed in March 2016 due to

Father’s lack of participation. Father was not referred for additional services

after that date due to his lack of contact. Father had seen the Children only one

time during the year preceding the termination hearing.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 5 of 12 [11] At the conclusion of the termination hearing, the trial court took the matter

under advisement. On May 8, 2017, the trial court issued its order terminating

Father’s parental rights. Father now appeals.

Discussion & Decision

[12] When reviewing the termination of parental rights, 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 most favorable to the judgment. Id. In deference to

the trial court’s unique position to assess the evidence, we will set aside its

judgment terminating a parent-child relationship only if it is clearly erroneous.

In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

evidence and inferences support the decision, we must affirm. Id.

[13] The trial court entered findings in its order terminating Father’s parental rights.

When the trial court enters 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 no facts to support them either directly or by inference.” Quillen

v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

only if the findings do not support the court’s conclusions or the conclusions do

not support the judgment thereon. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 6 of 12 [14] We recognize that 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.

Although parental rights are of constitutional dimension, the law provides for

the termination of these rights when parents are unable or unwilling to meet

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

2008). In addition, a court must subordinate the interests of the parents to those

of the child when evaluating the circumstances surrounding the termination. In

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

parental rights is not to punish the parents, but to protect their children. Id.

[15] Before an involuntary termination of parental rights may occur in Indiana, DCS

is required to allege and prove by clear and convincing evidence, 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[.]

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 7 of 12 Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

evidence that termination is in the best interests of the child and that there is a

satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

4(b)(2)(C), (D).

[16] Father first challenges the trial court’s findings as to subsection (b)(2)(B)(i) and

(ii). We note that DCS was required to establish only one of the three

requirements of subsection (b)(2)(B) by clear and convincing evidence before

the trial court could terminate parental rights. See In re L.V.N., 799 N.E.2d 63,

69 (Ind. Ct. App. 2003). Here, the trial court found that DCS presented

sufficient evidence to satisfy two of those requirements, namely, that there is a

reasonable probability the conditions resulting in the Children’s removal or

continued placement outside Father’s care will not be remedied and that the

continuation of the parent-child relationship poses a threat to the Children’s

well-being. See I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our inquiry on the

requirements of subsection (b)(2)(B)(i)—that is, whether there was sufficient

evidence to establish a reasonable probability that the conditions resulting in the

Children’s removal or continued placement outside Father’s care will not be

remedied.

[17] In making such a determination, the trial court must judge a parent’s fitness to

care for his or her child at the time of the termination hearing, taking into

consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

(Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent’s

habitual patterns of conduct to determine whether there is a substantial

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 8 of 12 probability of future neglect or deprivation of the child. Id. In making this

determination, courts may consider evidence of a parent’s prior criminal

history, drug and alcohol abuse, history of neglect, failure to provide support,

and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of

Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.

The court may also consider the parent’s response to the services offered

through DCS. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,

372 (Ind. Ct. App. 2007), trans. denied. “A pattern of unwillingness to deal with

parenting problems and to cooperate with those providing social services, in

conjunction with unchanged conditions, support a finding that there exists no

reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d

at 210. Moreover, the failure to exercise parenting time demonstrates a “lack of

commitment to complete the actions necessary to preserve [the] parent-child

relationship.” Lang, 861 N.E.2d at 372 (quoting In re A.L.H., 774 N.E.2d 896,

900 (Ind. Ct. App. 2002)) (alteration in original).

[18] The trial court found in relevant part as follows:

There is a reasonable probability that the conditions that resulted in the children’s removal and continued placement outside the home will not be remedied by their father who was unsuccessfully discharged from services and out of contact instead of demonstrating whether he can provide for his children and be attentive to their behavioral issues, although given adequate time to do so. [Father] has demonstrated h[e] is unable or unwilling to be a full-time appropriate parent.

Appellant’s Appendix Vol. 2 at 43.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 9 of 12 [19] The trial court’s finding in this regard is well-supported by the evidence. Father

failed to stay in contact with DCS and his home-based case manager, resulting

in the closure of his service referrals. Father never contacted DCS to restart

services or reestablish parenting time, and as a result, he saw the Children only

once in the year preceding the termination hearing, when he accompanied his

mother during one of her unsupervised visits with the Children. Additionally,

FCM Watson testified and the trial court found that Father’s one-bedroom

apartment would be inadequate for Father and all three Children, and Father’s

arguments to the contrary are nothing more than requests to reweigh the

evidence. Father’s lack of contact with DCS and service providers, his failure

to participate in services, and his failure to exercise parenting time all

demonstrate that he is unwilling or unable to take the steps necessary to be an

adequate parent to the Children. The trial court’s finding that there is a

reasonable probability that the conditions resulting in the Children’s removal or

continued placement outside Father’s care will not be remedied is not clearly

erroneous.

[1] Father also challenges the trial court’s finding that termination of his parental

rights is in the Children’s best interests. In determining whether termination of

parental rights is in the best interests of a child, the trial court is required to look

beyond the factors identified by DCS and consider the totality of the evidence.

In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court

must subordinate the interest of the parent to those of the child, and the court

need not wait until a child is irreversibly harmed before terminating the parent-

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 10 of 12 child relationship. McBride v. Monroe Cnty. Office of Family & Children, 798

N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme Court has explained that

“[p]ermanency is a central consideration in determining the best interests of a

child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have

previously held that the recommendations of the case manager and court-

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

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

clear and convincing evidence that termination is in the child’s best interests.”

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

[2] We have already concluded that the evidence is sufficient to support the trial

court’s finding that the conditions resulting in the Children’s removal and

continued placement outside Father’s care will not be remedied. We note

further that FCM Watson and the Children’s guardian ad litem both

recommended termination of Father’s parental rights. This is sufficient

standing alone to support the trial court’s finding that termination is in the

Children’s best interests. We note further, however, that the Children have

been in their respective foster placements for almost three years. S.J. and U.J.

have been placed together in the same foster home, and while T.J., III has been

placed separately, the foster parents are in close contact and the Children all see

each other every other weekend. The Children are doing well in their foster

placements, their significant developmental and behavioral needs are being met,

and their foster parents wish to adopt them. The trial court’s finding that

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 11 of 12 termination of Father’s parental rights is in the Children’s best interests is not

clearly erroneous.

[3] Judgment affirmed.

[4] Baker, J. and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1200 | November 6, 2017 Page 12 of 12