MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 23 2019, 6:14 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES Don R. Hostetler Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
David E. Corey Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- December 23, 2019 Child Relationship of: Court of Appeals Case No. 19A-JT-1616 T.T., M.T., S.T., D.T. (Minor Children) Appeal from the Marion Superior Court and The Honorable Marilyn Moores, T.T. (Father), Judge Appellant-Respondent, The Honorable Scott Stowers, Magistrate v. Trial Court Cause Nos. 49D09-1808-JT-1010, 49D09-1808- Indiana Department of Child JT-1011, 49D09-1808-JT-1012, Services, 49D09-1808-JT-1013 Appellee-Petitioner and
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 1 of 17 Child Advocates, Inc., Appellee-Guardian Ad Litem
Altice, Judge.
Case Summary
[1] T.T. (Father) appeals from the involuntary termination of his parental rights to
his minor children, T.T., M.T., S.T., and D.T. (collectively, the Children). He
challenges the sufficiency of the evidence supporting the termination order. 1
[2] We affirm.
Facts & Procedural History
[3] Father is currently twenty-seven years old and has four children with Mother.
Their son T.T. was born in October 2009, daughter M.T. was born in October
2010, daughter S.T. was born in February 2014, and son D.T. was born in
March 2016. D.T. was diagnosed with cystic fibrosis about ten days after birth
1 The Children’s mother’s rights were also terminated, but M.D. (Mother) does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 2 of 17 and has extensive medical and special needs. Mother was the primary caregiver
for the Children, and Father worked various construction-related jobs.
[4] The Indiana Department of Child Services (DCS) became involved with the
family shortly after D.T.’s birth because Mother and Father (collectively,
Parents) had failed to meet D.T.’s medical needs. The family also suffered from
financial instability and deplorable living conditions. Parents agreed to an
informal adjustment (IA) with DCS, including participation in homebased
therapy and case management services. The IA was approved by the trial court
on August 1, 2016. Parents, however, failed to substantially comply with the
terms of the IA, resulting in the trial court closing the IA as unsuccessful in
February 2017.
[5] DCS filed a CHINS petition on February 21, 2017, alleging that the Children
were in need of services because Parents failed to provide them with a safe,
stable, and appropriate living environment, lacked stable housing and financial
means to meet the needs of the Children, and failed to ensure that D.T. received
all necessary medical care. At the initial/detention hearing held that same day,
the trial court ordered the removal of the Children from Parents’ care. The trial
court authorized a temporary trial visit (TTV) once certain conditions were met.
[6] By March 3, 2017, all the Children except D.T., who was hospitalized at Riley
Hospital, had been returned to Mother’s care and custody through a TTV.
Shortly thereafter, on March 18, D.T. was discharged from the hospital and
placed on a TTV. The trial court ordered D.T.’s removal about a month later
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 3 of 17 due to a number of missed follow-up medical appointments. D.T. has
remained in his foster placement since this removal.
[7] Following a factfinding hearing on April 28, 2017, the trial court adjudicated
the Children CHINS. Mother admitted that the Children were CHINS because
she needed assistance obtaining stable housing and caring for medically frail
D.T. Father contested the adjudication. In the lengthy CHINS order, the trial
court detailed D.T.’s medical condition, including that he has cystic fibrosis and
requires a g-tube. The court’s findings included that D.T.’s primary pediatric
pulmonologist, though familiar with Mother, had never met Father and that
Father had not participated in D.T.’s medical treatment meetings or care
conferences despite D.T. being hospitalized at Riley from January 30, 2017 to
March 18, 2017. Additionally, Father had not participated in g-tube training at
Riley. The pulmonologist opined that D.T.’s health had been compromised by
Parents’ lack of medical follow up, failure to closely follow the treatment plan,
and exposure to smoke, and he expressed concern about D.T.’s health if placed
in Father’s care. The trial court’s findings also noted that Parents lacked stable
housing and that Father had not been engaged with service providers during
either the IA or the CHINS. The trial court permitted T.T., M.T., and S.T. to
remain on TTV. D.T. remained in foster placement.
[8] On May 19, 2017, the CHINS case proceeded to disposition. Parents were
ordered to cooperate with services recommended by Cross Systems Care
Coordination and the child and family team, including homebased therapy for
both, homebased case management for Mother, and Father Engagement for
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 4 of 17 Father. In the dispositional order, the court warned Parents that failure to
participate in services could lead to termination of parental rights. The
dispositional order was later modified as to Mother and she was ordered to
participate in substance abuse evaluation, random drug screens, and domestic
violence services.
[9] Early in the morning on June 1, 2017, Father committed armed robbery and
other related crimes. He has remained incarcerated since that day, first in jail
and then prison. In January 2018, he pled guilty, pursuant to a plea agreement,
to Level 3 felony robbery, Level 5 felony battery, Level 5 felony intimidation,
and two counts of Level 6 felony pointing a firearm. Thereafter, he received an
aggregate sentence of nineteen years, with twelve executed in prison and seven
suspended to probation.
[10] On August 9, 2017, T.T., M.T., and S.T were removed from Mother’s home
and placed in kinship care with L.S., a longtime family friend. This resulted
from Mother’s illegal drug use and her inconsistency with services. After the
TTV ended, Mother continued to struggle with illegal drugs, failed to comply
with services, and did not attend subsequent CHINS hearings. T.T., M.T., and
S.T have not been returned to Mother’s care.
[11] Due to Father’s incarceration, family case manager (FCM) Brittany Mitchell
sent Father letters and copies of orders from the CHINS case. She included
return envelopes with every letter, but Father never wrote back or otherwise
reached out to her for available services, such as Father Engagement.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 5 of 17 [12] The permanency plan in the CHINS proceedings changed to adoption in July
2018, and the following month, DCS filed a petition for the involuntary
termination of parent-child relationship (TPR Petition) with respect to each of
the Children. FCM Mitchell visited Father in prison and served him with the
TPR Petitions. After learning of the pending termination proceedings, Father
began to send written correspondence to FCM Mitchell for her and the
Children. Additionally, on September 17, 2018, Father started a program
called recovery while incarcerated (the RWI Program) to address issues with
substance abuse. Father hoped to obtain a sentence modification, such as being
placed on house arrest, after completing the program.
[13] The termination factfinding hearing was held on May 1, 2019. The evidence
established that the family began receiving services from DCS during the IA,
which started in August 2016, and services continued during the CHINS
proceedings. Sherri Kelley, a homebased therapist who began working with the
family around September 2016, testified that during her nine months with them,
she had minimal contact with Father. He expressed to her that “he had no
issues, it was all [Mother’s] fault that they were even in the situation and
basically, [Mother] needed to deal with it.” Transcript at 59. Kelley observed
Father criticize and insult Mother, and Kelley described an incident where
Father, after being thrown out of the home by Mother, returned with a gun and
removed the Children in the middle of the night. Kelley testified that she had
also observed Mother with a black eye. She opined, based on her experience
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 6 of 17 with domestic violence, that it was not safe for Mother or the Children to be
around Father.
[14] Similarly, FCM Mitchell expressed concerns about domestic violence, and she
testified that Parents did not complete any of the services during the IA. When
DCS filed the CHINS petition in February 2017, after six months of services
through the IA, Parents continued to lack stable housing, the family’s living
conditions were inadequate, and Parents were not properly attending to D.T.’s
medical needs. Father continued to have access to services up to his
incarceration in June 2017, and he could have worked with a Father
Engagement worker while in prison, but he never reached out for this service.
[15] During his own testimony, Father acknowledged that he did not really do much
during the IA and that he relied on Mother to complete the services while he
worked. He explained, “I just really didn’t think it was that big of a deal at the
time.” Transcript at 138. Father also testified that during the CHINS
proceedings he and Mother had “a toxic relationship” and he was drinking a lot
on the weekends and taking various kinds of drugs, including heroin, cocaine,
and methamphetamine. Then, just over a month after the Children were
adjudicated CHINS, he committed an armed robbery on June 1, 2017, which
led to his ongoing incarceration. After being in prison for six months and
learning of the TPR Petition, Father began the RWI Program on September 17,
2018. Father testified that he was close to graduating from the RWI Program
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 7 of 17 and then would seek a potential sentence modification. 2 At the time of the
termination hearing, however, Father’s sentence had not been modified and his
anticipated release from prison was November 2025. 3
[16] The Guardian ad Litem (GAL), appointed in February 2017, testified that the
Children’s current permanency plan was adoption and that she did not believe
it was in the Children’s best interests to give Father more time to work toward
reunification. She noted that Father had been given a lot of time to engage in
services and had done nothing and made no progress, even when not
incarcerated, and that Father had been incarcerated for nearly two years.
Moreover, the GAL testified that her position regarding adoption being the
correct plan for the Children would not change even if Father were to be
released early from prison.
[17] FCM Mitchell agreed that Father should not be given additional time to work
toward reunification, as he had not made any progress in his ability to care for
the Children and would be incarcerated for another six years. She observed
that Father’s “current incarceration was a result of a choice that he directly
2 The criminal court’s sentencing order indicated that the court would consider a modification to the sentence if Father successfully completed a clinically appropriate substance abuse treatment program. 3 Pursuant to Ind. Evidence Rule 201, we take judicial notice of the fact that an Indiana Department of Correction Offender Database Search shows that Father’s current earliest possible release date is in 2025. See www.in.gov/apps/indcorrection/ofs/ofs?lname=Trivett&fname=Terry&search1.x=34&search1.y=14 (last visited December 11, 2019).
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 8 of 17 made” after the CHINS proceedings had begun. Transcript at 118. In FCM
Mitchell’s opinion, termination was in the Children’s best interests.
[18] DCS presented evidence that the Children are doing well in their current
placements and are bonded with their caregivers. D.T. has been with the same
foster family since April 28, 2017. His foster mother is meeting all of D.T.’s
extensive medical and special needs. D.T. is in a pre-adoptive home. The
other children are together in kinship care with L.S. and her family. This is a
pre-adoptive placement for T.T. and S.T., but not M.T., who has behavioral
and emotional issues. L.S. testified that she believes M.T. needs to be in a
home with someone that can devote more time to her individually, which was
difficult for L.S. with four other children in her care. DCS had identified a
paternal aunt in Ohio as a possible pre-adoptive placement for M.T., and L.S.
expressed a commitment to maintaining the sibling bond with visits between
T.T., S.T., and M.T.
[19] The trial court took the matter under advisement at the conclusion of the
termination hearing. Thereafter, on May 29, 2019, the trial court issued an
order involuntarily terminating the parent-child relationship between Father
and each of the Children. Father now appeals.
Discussion & Decision
[20] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628
(Ind. 2016). Instead, we consider only the evidence and reasonable inferences
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 9 of 17 most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied. 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. In light of the applicable clear and convincing
evidence standard, we review to determine whether the evidence clearly and
convincingly supports the findings and whether the findings clearly and
convincingly support the judgment. In re R.S., 56 N.E.3d at 628.
[21] 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.
[22] 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, that one of the following is true:
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 10 of 17 (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[.]
Ind. Code § 31-35-2-4(b)(2)(B); Ind. Code § 31-37-14-2. 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); I.C. § 31-37-14-2.
[23] On appeal, Father asserts that there is insufficient clear and convincing
evidence that the conditions resulting in the Children’s removal would not be
remedied, that the continuation of the parent-child relationship poses a threat to
the well-being of the Children, that termination is in the best interests of the
Children, and that there is a satisfactory plan for the care and treatment of the
Children following termination. We will address each in turn as needed.
[24] DSC presented ample evidence to establish by clear and convincing evidence
that there is a reasonable probability that the conditions resulting in the
Children’s removal or continued placement outside the home will not be
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 11 of 17 remedied by Father. 4 In making this determination, the trial court must judge a
parent’s fitness to care for his children 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 probability of future neglect or deprivation of the children. Id. In
conducting this inquiry, 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 Cty.
Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans.
denied. Further, it is within the trial court’s discretion to disregard efforts made
only shortly before termination and to weigh more heavily a parent’s history of
conduct prior to those efforts. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d
1225, 1234 (Ind. 2013). “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.
[25] Here, the evidence establishes that DCS had been working with the family and
providing services since August 2016 through the IA and then the CHINS
proceedings. By his own admissions, Father did not take services seriously and
4 The trial court determined that DCS had proven both subsections (b)(2)(B)(i) and (b)(2)(B)(ii). Because DCS was required to establish only one of these by clear and convincing evidence, we focus our review on subsection (b)(2)(B)(i).
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 12 of 17 did not actively engage in services or attend to the medical needs of D.T. He
left all of that to Mother, who was similarly not progressing with services. Even
after the IA was closed and the CHINS petition was filed, Father continued to
use illegal drugs and alcohol, essentially ignore services, and not provide his
family with safe, stable housing. Then, after the Children were adjudicated
CHINS, Father committed armed robbery and other crimes in June 2017,
which resulted in a lengthy prison sentence. For more than a year into his
incarceration, Father initiated no contact with FCM Mitchell and did not seek
out available DCS services, such as Father Engagement. In sum, Father made
no real effort toward reunification until after the termination proceedings
began. He started the RWI Program in September 2018 but, as of the
termination hearing, had yet to complete the program or obtain a modification
of his sentence. Currently, Father’s release date remains in 2025.
[26] We find unavailing Father’s attempts to liken this case to that of K.E. v. Ind.
Dep’t of Child Servs., 39 N.E.3d 641 (Ind. 2015). The father in K.E. was
incarcerated before his child was born and taken into DCS custody and
adjudicated a CHINS. Thus, the father was unable to care for his child solely
due to his incarceration. While incarcerated, the father had regular visits and
phone calls with his child, who was in the care of a paternal aunt. The father
also completed over twelve programs in prison that related to self-improvement,
parenting, and drug and alcohol abuse. In reversing the termination order in
K.E., our Supreme Court held that the father’s possible release date of more
than two years away was insufficient alone to demonstrate that the conditions
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 13 of 17 for removal will not be remedied. Id. at 648 (“[T]he potential release date is
only one consideration of many that may be relevant in a given case.”). Given
the substantial efforts that he had made to improve his life by learning to
become a better parent, establishing a relationship with his child, and attending
substance abuse classes, the Court concluded DCS had not proven by clear and
convincing evidence that the father could not remedy the conditions. Id. at 649.
[27] In the present case, the Children were removed from Father’s care and
adjudicated CHINS before he committed the crimes that resulted in his lengthy
prison sentence. Further, despite opportunities, Father did not seek to improve
himself as a parent during the IA or the CHINS and made little effort in prison
until the termination proceedings began. Because of this, the GAL testified that
her opinion that adoption was the correct plan for the Children would not
change even if Father were to be released early from prison.
[28] Father has not made the same improvements and effort as the father in K.E., his
expected release date is about six years out, and his incarceration is not the sole
basis for his failure to remedy the conditions that led to removal of the
Children. Accordingly, while we commend Father for his recent efforts to
better himself, we conclude that sufficient evidence supports the trial court’s
finding that the conditions that led to the Children’s removal will not be
remedied.
[29] Turning to the best interest factor, Father asserts, with little analysis, that the
evidence was insufficient to support the trial court’s finding that termination
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 14 of 17 was in the Children’s best interests. In making this best-interests determination,
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). The court must subordinate the interest of the parent to those of
the children and need not wait until a child is irreversibly harmed before
terminating the parent-child relationship. McBride v. Monroe Cty. 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 at 236.
[30] Father seems to suggest that the trial court’s best interest determination was
based solely on the fact that there is a better place for the Children to live. On
the contrary, the evidence established that Father had been unable to provide a
safe and stable environment for the Children, had failed to attend to D.T.’s
extensive medical needs, and had committed a violent crime after the Children
were adjudicated CHINS. Father made no progress with services in the year
prior to being incarcerated and only began addressing his substance abuse issues
after the termination proceedings began. His current expected release date from
prison is in June 2025, when the Children will range in age from nine to fifteen
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 15 of 17 years old. Like the GAL and FCM, we do not believe that the Children should
be required to wait for Father’s release and the unlikely possibility that he will
have remedied the reasons for their removal. They deserve permanency now in
a stable home where their needs will be safely met.
[31] Finally, Father challenges whether there is sufficient evidence that DCS has a
satisfactory plan for the care and treatment of the Children following
termination. He asserts that there is “manifestly no definitive plan at all”
because M.T. is not in a pre-adoptive home and the Children are likely to be
split up between three homes. Appellant’s Brief at 21.
[32] The evidence establishes that the plan for the Children is adoption, though not
all in the same home. D.T. is in a pre-adoptive home where his health has
steadily improved since the age of thirteen months. He is now over three years
old, is bonded with his foster family, and has had no contact with Father for
over two years. The three older children are in L.S.’s kinship care. L.S. would
like to adopt T.T. and S.T. While she is not prepared to adopt M.T. due to her
individual needs, L.S. is willing to care for M.T. until a pre-adoptive placement
is determined, which could be with a paternal aunt who is being considered by
DCS. L.S. also plans to facilitate sibling visits to maintain their bond.
[33] DCS’s adoption plan is a satisfactory plan for the care and treatment of the
Children. See In re D.D., 804 N.E.2d at 268 (“[the] plan need not be detailed, so
long as it offers a general sense of the direction in which the child will be going
after the parent-child relationship is terminated”); see also In re A.S., 17 N.E.3d
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 16 of 17 994, 1007 (Ind. Ct. App. 2014) (“a plan is not unsatisfactory if DCS has not
identified a specific family to adopt the children”), trans. denied. While we
understand the desire to keep the Children together, a plan may be satisfactory
even if it is for the children to have separate adoptive homes. See In re A.S., 17
N.E.3d 1007 (citing A.J. v. Marion Cty. Office of Family & Children, 881 N.E.2d
706, 719 (Ind. Ct. App. 2008), trans. denied).
[34] Judgment affirmed.
Robb, J. and Bradford, J, concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 17 of 17