MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 14 2016, 8:37 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 Andrew J. Sickmann Gregory F. Zoeller Richmond, Indiana Attorney General of Indiana
Robert J. Henke Deputy Attorney General
David E. Corey Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
L.G. and D.D., June 14, 2016 Appellants-Respondents, Court of Appeals Case No. 89A01-1511-JT-2067 v. Appeal from the Wayne Superior Court The Indiana Department of The Honorable Darrin M. Child Services, Dolehanty, Judge Appellee-Petitioner. Trial Court Cause No. 89D03-1507-JT-26
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 1 of 16 [1] L.G. (Mother) and D.D. (Father) (referred to collectively as Parents) appeal the
involuntary termination of their parental rights to J.D. (Child). They challenge the
sufficiency of the evidence supporting the termination.
[2] We affirm.
Facts & Procedural History
[3] Child was born to Parents on March 6, 2014, and remained in their custody and
care thereafter. On or about June 14, 2014, Parents and the maternal grandparents
brought Child to the hospital with an injury to his mouth – a torn frenulum.
Parents offered no explanation for this injury. Upon further examination, medical
staff discovered that the infant had seven fractures at various stages of healing.
Child, at only three months old, had four broken ribs and a fractured arm, left
femur, and right ankle. Again, Parents could not explain Child’s multiple, serious
injuries. The hospital contacted the Indiana Department of Child Services (DCS).
[4] Amy Denton, an assessment case manager with DCS, responded to the hospital
and spoke with medical staff and Child’s family. Denton spent over three hours at
the hospital assessing the situation. In speaking with Parents regarding Child’s
injuries, Denton observed that both Father’s and Mother’s demeanor seemed very
calm. She believed their “lack of emotion in this situation was inappropriate.”
Transcript at 32. Parents could offer Denton no explanation for Child’s injuries.
Accordingly, Denton took Child into protective custody, and DCS filed a petition
alleging Child to be a child in need of services (CHINS).
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 2 of 16 [5] At the detention hearing on June 17, 2014, the trial court authorized the continued
removal of Child. In its order the court found that Child needed protection due to
his “seven fractures that cannot be explained by the parents and that do not appear
to be the result of accidental injury.” Exhibits at 4. The court further explained the
emergency nature of the situation as follows:
[T]he child was taken to the hospital because of a torn frenulum. That injury in a three month old child is unlikely to be because of accidental injury. The parents had no explanation for that injury. A skeletal survey showed four fractured ribs, both legs fractured and a fractured arm. The fractures appeared to be of different ages. The parents could not explain the injuries.
Id. at 4-5. DCS filed a CHINS petition following the hearing.
[6] Criminal charges were filed against Mother and Father as a result of Child’s
injuries. Parents were arrested on or about July 1, 2014, and remained
incarcerated awaiting trial. They have been unable to visit Child since their arrests.
[7] At an August 11, 2014 fact-finding hearing, the trial court adjudicated Child a
CHINS. In its order, the court, once again, noted the infant’s multiple fractures,
which occurred at different times, and the injury to Child’s mouth. These serious
injuries occurred while Parents had the control and custody of Child.1
1 Ind. Code § 31-34-12-4 establishes a rebuttable presumption that a child is a CHINS because of an act or omission of the child’s parent(s) if the State introduces competent evidence of probative value that: (1) the child has been injured; (2) at the time the child was injured, the parent…:
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 3 of 16 [8] Following the dispositional hearing on September 5, 2014, the trial court entered
an order in which it found that Child “needs a home where he is safe from physical
injury” and, thus, granted wardship of Child to DCS. Exhibits at 13. The court
ordered Parents to participate in services but noted that due to their pending
criminal charges they had been advised by counsel not to participate in “many
services.” Id. The court found that removal was in Child’s best interests and that
reasonable efforts to prevent or eliminate removal were not required due to the
emergency nature of the situation. The court explained:
the child was taken to the hospital by the parents because of a torn frenulum. Medical personnel then discovered that the child had four fractures to the back ribs. That type of injury is usually caused by squeezing. The child had a fracture to the right tibia. The nature of that fracture is usually the result of yanking or jerking. The child also had a fractured femur. The fractures occurred at different times. The parents had no explanation of how the injuries occurred.
Id. at 14.
[9] DCS placed Child with relatives on October 12, 2014, with whom he has since
remained. Child has thrived in this family’s care and has recovered from his
(A) had the care, custody, or control of the child; …. (3) the injury would not ordinarily be sustained except for the act or omission of a parent…; and (4) there is a reasonable probability that the injury was not accidental. Parents did not rebut this presumption.
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 4 of 16 injuries. The foster parents, who have two young children of their own, wish to
adopt Child.
[10] On May 27, 2015, Father pled guilty pursuant to a plea agreement to class B felony
neglect of a dependent. Mother followed suit on June 16, 2015. They were each
sentenced to ten years in prison, with five of those years suspended and three years
on probation. The convictions were based on the serious bodily injuries sustained
by Child while under their care.
[11] The trial court held a permanency hearing in the CHINS case on June 8, 2015, at
which time the plan for Child was changed to termination of parental rights and
adoption. Thereafter, DCS filed a petition for involuntary termination of parental
rights. The termination hearing was conducted on October 29, 2015.
[12] The evidence presented at the termination hearing established that minimal
services were provided to Mother and Father while they were in the local jail.
From February 2015 through June 2015, Father had weekly sessions with Thomas
Brazzell of the Children’s Bureau. They worked on father engagement, self-care,
and other parenting issues. Father was engaged during the sessions and expressed
remorse for what happened to Child, but he never took responsibility for the
injuries. For about six months, Mother participated weekly in a program called
Lifeline, which addressed parenting, employment, and coping skills. At the time of
the termination hearing, Mother’s earliest possible release date from prison was
June 30, 2016, and Father’s was November 30, 2016.
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 5 of 16 [13] Family case manager (FCM) Danielle Drew recommended termination of parental
rights. She noted Parents’ continued incarceration – due to their victimization of
Child – but emphasized that the primary reason for her recommendation was that
neither parent has explained Child’s various injuries. FCM Drew opined that
termination was in Child’s best interests:
I believe [Child] deserves a safe, stable environment, free from abuse or neglect. I feel that he has been through a lot of trauma since birth…. And he is now safe and stable, and in a very, very appropriate environment. And it would be very traumatic for this child to be placed anywhere else at this point. In addition to that, we cannot ensure his safety returning to the parents.
Transcript at 67.
[14] CASA Director Karen Bowen similarly recommended termination of parental
rights. Regarding Child’s best interests, the CASA noted that Parents remained
incarcerated, as they have been for nearly all of Child’s life, and that Child will
have been removed for two years by the time of their release. Even after their
release from prison, Parents would need additional time for services before any
potential reunification. The CASA opined that this would be “so unfair” to Child,
who had established a “beautiful” life with his foster family. Id. at 81, 87.
Moreover, the CASA noted the difficulty in providing proper services to Parents
where Child’s injuries remain unexplained. Under these circumstances, the CASA
stated, “I could never say that I was comfortable reunifying a child.” Id. at 83. In
closing, the CASA emphasized that Child was “a victim of his parents, not a
mistake.” Id. at 114.
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 6 of 16 [15] At the conclusion of the hearing, the trial court took the matter under advisement.
The court issued its order terminating parental rights the following day. In
addition to findings of fact, the trial court entered the following conclusions in
support of its judgment:
A. There is clear and convincing evidence to show that [Child] has been removed from [Parents] for at least six (6) months under a dispositional decree….
B. There is clear and convincing evidence to determine that the conditions that led to this child’s removal from the parents, and the reasons for his placement outside the home of the parents will not be remedied. The child had been seriously injured prior to removal from his parents. The injuries occurred at different times. The injuries occurred while the child was under the care and supervision of the parents. The parents have not been able to provide a reasonable explanation for how the child was repeatedly injured.
Additionally, there is a reasonable probability that continuing the parent-child relationship poses a threat to [Child’s] well-being. [Child] suffered significant injuries, imposed at different times, and was again injured immediately prior to removal. The parents have not been able to reasonably explain the cause of the injuries. Since the child’s removal from the parents, his injuries have resolved and he is healthy and happy.
C. There is clear and convincing evidence to establish that termination of the parent-child relationship is in the child’s best interest. Under the parents’ care he suffered numerous, significant injuries, including broken ribs, a broken leg, a broken ankle, and a torn frenulum. Since Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 7 of 16 removal from the parents, the child’s injuries have resolved and he has become healthy, happy and bonded to his foster family.
D. There is clear and convincing evidence to show that the DCS has established a satisfactory plan for [Child’s] care and treatment, that being adoption.
Appendix at 66. Parents jointly appeal from this order.
Discussion & Decision
[16] 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.
[17] The trial court entered findings in its order terminating parental rights. When the
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. Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 8 of 16 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.
[18] 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.
[19] 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 89A01-1511-JT-2067 | June 14, 2016 Page 9 of 16 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 there is a
satisfactory plan for the child’s care and treatment. I.C. § 31-35-2-4(b)(2)(C), (D).
[20] On appeal, Parents argue that the evidence was insufficient to support the
involuntary termination of their parental rights. They challenge several of the trial
court’s specific findings and its conclusions as to I.C. § 31-35-2-4(b)(2)(B)(i) and
(ii), as well as I.C. § 31-35-2-4(b)(2)(C).
[21] We turn first to Parents’ challenges regarding certain factual findings entered by
the trial court. They argue that findings number 6, 8, 9, 19, 20, and 30 are not
supported by the evidence. We will address each in turn.
[22] Finding number 6 provides: “FCM Denton recalled that she was at the hospital
for approximately three and one-half (3 ½) hours, and that Father and Mother
were both oddly calm while at the hospital.” Appendix at 63. Parents challenge
this finding by arguing that FCM Denton had no prior experience with them and
was, thus, unable to adequately evaluate their demeanor. They also point to
testimony from a family member who “offered a different opinion” regarding their
demeanor at the hospital. Appellants’ Brief at 15. We reject Parents’ invitation to
reweigh the evidence. FCM Denton’s testimony supported this finding.
[23] Parents next challenge findings number 8 and 9, which provide:
8. The parents did not offer FCM Denton any explanation for the child’s injuries.
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 10 of 16 9. Because the child was taken into protective custody on June 14, 2014 (a Saturday), a Detention hearing was held on June 17, 2014. The Court authorized the continued removal of the child, finding that returning the child would be contrary to his welfare. The child was found to have “seven fractures that cannot be explained by the parents and that do not appear to be the result of accidental injury.” Responsibility for the care and treatment of [Child] was ordered to the DCS. (See Exhibit 2).
Appendix at 63-64. Parents do not dispute that these findings are supported by the
evidence. Rather, they argue that these findings do not support the judgment
because “lack of an explanation is not a condition supporting removal, which the
parents are able to remedy.” Appellants’ Brief at 17. While Parents frame their
argument as a challenge to these findings, it is not. See Quillen, 671 N.E.2d at 102
(findings will be found clearly erroneous “only when the record contains no facts
to support them either directly or by inference”).
[24] Parents next claim that findings number 19 and 20 are not supported by the
evidence. These findings were based on the foster mother’s testimony about the
inconsistent phone calls and communications from Mother and Father regarding
Child. Parents do not dispute that the findings are consistent with the foster
mother’s testimony. They simply assert (with no citation to the record) that they
called when able and that the court failed to consider in its findings that they were
unable to place frequent phone calls once transferred from jail to prison. Once
again, we reject the invitation to reweigh the evidence.
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 11 of 16 [25] Finally, Parents argue that finding number 30 is not supported by the evidence.
This finding indicated that Parents have not visited with Child since he was three
months old and that at the time of the termination hearing, Child was just over one
and one-half years old. Parents’ sole challenge to this finding is that it was
impossible for them to visit child while incarcerated. This observation, however
true, does not make the trial court’s finding clearly erroneous.2
[26] Having upheld the trial court’s findings, we now turn to the court’s conclusions
with respect to I.C. § 31-35-2-4(b)(2)(B). In this regard, we observe that DCS was
required to establish only one of the three requirements of subsection (b)(2)(B) by
clear and convincing evidence. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App.
2003). 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 Child’s removal or continued placement outside Parents’ care will not
be remedied and that the continuation of the parent-child relationship poses a
threat to Child’s well-being. See I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our
inquiry on the former requirement—that is, whether there was sufficient evidence
to establish a reasonable probability that the conditions resulting in Child’s
2 It is well established that “[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.” K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1235-36 (Ind. 2013). In this case, not only did Parents’ criminal behavior result in a substantial period of incarceration during Child’s young life, but Child was the direct victim of their criminal acts.
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 12 of 16 removal or continued placement outside Mother’s and Father’s care will not be
remedied.
[27] 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 probability of future neglect or
deprivation of the child. Id.
[28] The trial court’s conclusion that the conditions resulting in removal or continued
placement outside Parents’ care will not be remedied was expressly based on the
severe nature of Child’s injuries and Parents’ continued failure to provide a
reasonable explanation for how the infant was repeatedly injured while under their
care and supervision. Parents do not dispute the serious nature of the injuries
suffered by Child while in their care or that no explanation for these injuries has
been offered by them. Rather, they hang their hat on the fact that DCS has been
unable to pinpoint the precise cause of the various injuries or establish that the
infant was injured at the hands of either parent.
[29] Under the circumstances of this case, we find Parents’ argument wholly without
merit. Their three-month-old infant was brought to the hospital with a tear inside
his mouth. Beyond this injury, the infant was found to have seven broken bones at
various stages of healing, indicating that the fractures occurred over a period of
time. In his short life, Child had suffered four broken ribs, a broken arm, and two
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 13 of 16 broken legs while in the care of his parents. At no time have Mother or Father
offered an explanation for these apparently non-accidental injuries. They did,
however, both plead guilty to class B felony neglect of a dependent based on the
serious bodily injuries sustained by Child.
[30] While incarcerated for victimizing their infant, Parents did eventually participate in
several months of services relating to parenting skills and employment. The
services available to them were indeed limited by their incarceration, and they were
unable to visit with Child. Regardless of the services offered or utilized by Parents,
the fact remains that they have not explained how their infant sustained such
serious injuries while in their care. Only Mother and Father can shed light on this
crucial issue. The fact that they have chosen to remain silent regarding the details
of Child’s tumultuous first few months of life cannot compel the return of Child to
their care. DCS’s legitimate concerns about returning Child to Parents’ care
clearly have not been alleviated. Accordingly, the trial court’s conclusion that
there exists a reasonable probability the conditions resulting in Child’s removal and
continued placement outside Parents’ home will not be remedied is supported by
its findings of fact and not clearly erroneous.
[31] Parents also challenge the trial court’s conclusion that termination is in Child’s best
interests. In determining the best interests of a child, a trial court is required to
look beyond the factors identified by DCS and to consider the totality of the
evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). The court must
subordinate the interests of the parents to those of the child, and need not wait
until the child is irreversibly harmed before terminating the parent-child
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 14 of 16 relationship. Id. “Permanency is a central consideration in determining the best
interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009).
[32] In making its determination regarding Child’s best interests, the trial court
observed: “Under the parents’ care [Child] suffered numerous, significant injuries,
including broken ribs, a broken leg, a broken ankle, and a torn frenulum. Since
removal from the parents, the child’s injuries have resolved and he has become
healthy, happy and bonded to his foster family.” Appendix at 66.
[33] The evidence establishes that Child is thriving in his current placement and has
recovered from the multiple injuries suffered during his short time with Parents.
Child has been with his foster family the majority of his life. Further, as a direct
result of Parents’ crimes against Child, they have not seen him since June 2014
when he was an infant. Parents are not bonded with Child, and even after their
release from prison, they would have a “long road” ahead of them before any
possibility of reunification with Child. Transcript at 77. Both FCM Drew and the
CASA discussed the importance of permanency and stability in Child’s life and
opined that termination was in his best interests. See In re J.S., 906 N.E.2d at 236
(“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”). The trial court’s
conclusion that termination is in Child’s best interests is not clearly erroneous.
[34] Judgment affirmed.
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 15 of 16 Bailey, J. and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 89A01-1511-JT-2067 | June 14, 2016 Page 16 of 16