In the Termination of the Parent-Child Relationship of: W.W. & C.W. (Minor Children), and M.W. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 16, 2017
• Docket: 55A01-1702-JT-225
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 16 2017, 11:35 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Glen E. Koch II Curtis T. Hill, Jr. Boren, Oliver & Coffee, LLP Attorney General of Indiana Martinsville, Indiana Marjorie Newell Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- May 16, 2017 Child Relationship of: W.W. & Court of Appeals Case No. C.W. (Minor Children), 55A01-1702-JT-225 and Appeal from the Morgan Circuit Court M.W. (Father), The Honorable Matthew G. Appellant-Respondent, Hanson, Judge

v. Trial Court Cause Nos. 55C01-1607-JT-289 55C01-1607-JT-290 The Indiana Department of Child Services, Appellee-Petitioner

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017 Page 1 of 10 [1] M.W. (Father) appeals the trial court’s order terminating the parent-child

relationship between Father and his children, W.W. and C.W. Father argues

that there is insufficient evidence supporting the termination order. Finding the

evidence sufficient, we affirm.

Facts [2] Father is the adoptive father of W.W., who was born on March 4, 2003, and

C.W., who was born on February 10, 2004. Before the Department of Child

Services (DCS) became involved with this family, Father was the noncustodial

parent and exercised parenting time every other weekend.

[3] In June 2014, the children’s mother and stepfather 1 entered into a program of

Informal Adjustment with DCS after they admitted to using methamphetamine

and opiates and to being asleep while C.W. was wandering around outside

unsupervised for several hours. The program of Informal Adjustment was

unsuccessful and, on September 11, 2014, DCS filed a petition alleging that the

children were children in need of services (CHINS), removed the children, and

placed them in Father’s care and custody.

[4] On September 27, 2014, Father and the children were involved in a serious car

accident. The family case manager (FCM) testified that the accident occurred

because Father was under the influence of drugs and alcohol while driving. Tr.

1 The mother and stepfather have relinquished their parental rights and do not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017 Page 2 of 10 p. 48, 69-70. As a result of the accident, (1) C.W. suffered a broken pelvis and

femur and was placed in a medically induced coma; (2) W.W. suffered minor

injuries; and (3) Father suffered several broken bones and a punctured lung and

was placed in a medically induced coma. DCS removed the children from

Father’s care on September 28, 2014, because Father had endangered them and

was unable to provide for their care while hospitalized. On October 2, 2014,

the trial court found the children to be CHINS. On December 29, 2014, the

trial court entered a dispositional decree ordering Father to, among other

things, participate in home-based counseling, complete a substance abuse

assessment and comply with all recommendations, submit to random drug and

alcohol screens, and participate in visitation with the children.

[5] Father was released from an injury rehabilitation facility on February 14, 2015.

He admits that following his release, he “did not engage with DCS to perform

any of the duties that [he was] required to do.” Id. at 89. Specifically, his

participation with services was limited to the following:

 From May to August 2015, Father worked with a family support specialist on life skills, including budgeting and providing adequate meals for the children. Father was not motivated to participate, did not make progress, and on one occasion said that he “didn’t care what DCS wanted and was not going to do . . . what they requested.” Id. at 14.  Also during the summer of 2015, he met with a therapist on three occasions. The therapist recommended that Father participate in intensive outpatient substance abuse treatment but Father refused. Father made no progress, in part because he refused to admit to substance abuse issues, and the service was closed unsuccessfully after Father stopped attending.

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017 Page 3 of 10  In October 2015, Father completed a substance abuse assessment, which recommended that he participate in intensive outpatient substance abuse treatment and sign releases regarding his multiple medications. Father refused to participate in treatment and refused to sign any releases.  He visited with his children once or twice a month for two or three months before requesting to stop his visits. During visits, he struggled to engage with the children and did not provide adequate food for the children. On December 17, 2015, he signed a letter saying, “I want to stop my visits with both my children.” DCS Ex. 37. He has not visited with his children since December 2015 and has never requested that his visits be resumed.

Father has also failed to maintain consistent contact with the FCM and has

never participated in random drug screens. He admitted to stating on multiple

occasions that he did not want to participate in this case, with services, or with

visitation. Father has not participated with any DCS services since December

2015. On July 15, 2016, he submitted a letter to the trial court indicating that

he wished to relinquish his parental rights. DCS Ex. 38.

[6] Father struggles with drug and alcohol abuse. In June 2015, Father was

charged with Level 6 felony operating a vehicle while intoxicated. 2 He was

eventually convicted and sentenced to two years of probation. When asked

about this conviction at the termination hearing, Father denied that he has a

problem with alcohol use. The individual who administered Father’s October

2015 substance abuse assessment testified as follows:

2 This charge does not stem from the September 2014 accident; it appears as though no charges were filed related to that incident.

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017 Page 4 of 10  Father has moderate to severe alcohol abuse, mild cannabis abuse disorder, antisocial personality disorder, and post-traumatic stress disorder. Tr. p. 23.  Father used alcohol almost daily and refused to cut back regardless “of potential loss and current losses with family and [a] bunch of ultimate impairments[.]” Id. at 24.  He was taking over a dozen different medications; mixing those with alcohol could be deadly.  Father was occasionally using marijuana and disclosed a history of methamphetamine use.

Father participated with substance abuse treatment and random drug screens

through probation, but he never informed DCS either of his criminal case or

that he was receiving services through probation. He refused to sign an

authorization allowing DCS to confirm his claims with probation.

[7] On July 27, 2016, DCS filed a petition to terminate Father’s parental rights.

The trial court held a factfinding hearing on October 3, 2016, January 5, 2017,

and January 10, 2017. At the time of the hearing, the children were placed with

their step-grandfather, who plans to adopt them. The children are doing well in

that placement and in school. W.W. testified at the hearing that she wanted to

remain where she was and did not want to return to Father’s care because she

does “not really” feel safe with him. Id. at 38-39. On January 11, 2017, the

trial court issued an order terminating Father’s parental rights. Father now

appeals.

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017 Page 5 of 10 Discussion and Decision I. Standard of Review [8] Father argues that there is insufficient evidence supporting the trial court’s

termination order. Our standard of review with respect to termination of

parental rights proceedings is well established. In considering whether

termination was appropriate, we neither reweigh the evidence nor assess

witness credibility. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229

(Ind. 2013). We will consider only the evidence and reasonable inferences that

may be drawn therefrom in support of the judgment, giving due regard to the

trial court’s opportunity to judge witness credibility firsthand. Id. Where, as

here, the trial court entered findings of fact and conclusions of law, we will not

set aside the findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

839 N.E.2d 143, 148 (Ind. 2005).

[9] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

(A) that one (1) of the following is true:

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017 Page 6 of 10 (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 local office 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.

(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

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017 Page 7 of 10 (D) that there is a satisfactory plan for the care and treatment of the child.

DCS must prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1230.

II. Best Interests [10] Father’s sole argument on appeal is that the trial court erred by finding that

DCS proved by clear and convincing evidence that termination is in the best

interests of the children. He highlights the following evidence: (1) he has

participated with substance abuse treatment and random drug screens through

probation; (2) he is receiving psychiatric treatment for post-traumatic stress;

(3) at the time of the termination hearing, he no longer wished to relinquish his

parental rights; (4) he had a stable home; and (5) DCS did not attempt to

dissuade him when he decided to stop participating in services and visiting with

his children. This amounts, essentially, to a request that we reweigh the

evidence, which we are not permitted to do. Instead, we must focus on the

evidence supporting the trial court’s conclusion that DCS proved that

termination is in the children’s best interests and evaluate whether that evidence

is sufficient.

[11] For over two years, Father failed to comply with the trial court’s dispositional

order in the CHINS case. He only minimally participated in therapy, failed to

complete random drug screens, and refused two separate providers’

recommendation that he participate in substance abuse treatment. He visited

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017 Page 8 of 10 with his children only a handful of times, and during those visits, he struggled

to engage with the children. In December 2015, he asked that the visits stop,

and he has not visited with his children since that time. He repeatedly

expressed to service providers and DCS that he had no desire to participate with

services or in the case, and wrote a letter to the trial court just three months

before the termination hearing expressing his desire to relinquish his parental

rights.

[12] We acknowledge that Father has experienced physical and mental trauma as a

result of the September 2014 accident. We also acknowledge his apparent

efforts to participate in substance abuse treatment through probation. 3 But he

has had nearly two years to make progress in the CHINS case and has failed to

do so. As the trial court found, “when facing jail, he can comply. When faced

with losing his kids he simply will not.” Appellant’s App. p. 32. His last-

minute change of heart regarding his relationship with his children was sadly

too late to overcome the years of failure to participate and statements that he

did not want to parent his children. Given this record, we find that the trial

court did not err by concluding that DCS proved by clear and convincing

evidence that termination is in the children’s best interests.

3 We note that at the termination hearing Father still insisted that he does not have a problem with alcohol use, causing us to question whether Father has truly benefited from the treatment he has received through probation. Tr. p. 90.

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017 Page 9 of 10 [13] The judgment of the trial court is affirmed.

Barnes, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017 Page 10 of 10