Termination: C.T. v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 15, 2017
• Docket: 32A05-1610-JT-2398
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 15 2017, 9:17 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery A. Earl Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana

Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the May 15, 2017 Parent-Child Relationship of Court of Appeals Case No. A.S. (Minor Child) and 32A05-1610-JT-2398 Appeal from the Hendricks Superior Court C.T. (Father), The Honorable Karen M. Love, Appellant-Respondent, Judge

v. Trial Court Cause No. 32D03-1512-JT-10

The Indiana Department of Child Services, Appellee-Petitioner

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 1 of 11 Case Summary [1] A.S., a special-needs child, spent the first ten weeks of his life in the hospital.

V.S. (“Mother”) and C.T. (“Father”) failed to visit A.S. daily and when they

did visit him it was at midnight and for twenty minutes. The Department of

Child Services (DCS) got involved and A.S. was adjudicated a child in need of

services (CHINS). DCS later petitioned to terminate Mother’s and Father’s

parental rights. The court granted DCS’s petition, concluding that there was a

reasonable probability that the conditions that resulted in A.S.’s removal and

continued placement outside the home would not be remedied. Father appeals

the ruling,1 arguing that the evidence is insufficient to support the trial court’s

conclusion. Finding sufficient evidence, we affirm.

Facts and Procedural History [2] A.S. was born premature on June 13, 2014, and spent approximately ten weeks

in the hospital. A.S. had significant health problems, including needing full-

time oxygen and a feeding tube. Mother and Father, who were dating at the

time, visited A.S. every-other night at midnight and stayed for approximately

twenty minutes per visit. On July 22, DCS received a report detailing concerns

about Mother’s and Father’s ability to parent A.S. Based on the initial report,

1 Mother is not a party to this appeal. During the termination hearing, Mother notified the court that she was voluntarily terminating her parental rights to A.S. See Tr. pp. 100-110. Accordingly, this opinion discusses the facts relevant to Father’s case.

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 2 of 11 DCS investigated the situation and on July 31 filed a petition with the trial

court alleging that A.S. was a CHINS. Among other things, DCS cited

Mother’s and Father’s failure to spend an appropriate amount of time with A.S.

in the hospital and their inability to maintain stable housing.

[3] Multiple hearings were held regarding DCS’s petition. During these

proceedings, A.S. was removed from Mother’s and Father’s care and was

placed with the maternal grandmother (“Grandmother”). At one hearing,

Father stipulated that A.S. was a CHINS given his medical issues and the fact

that the parents had failed to appropriately visit A.S. in the hospital. The court

adjudicated A.S. a CHINS on November 20, 2014, and ordered that A.S.

remain in Grandmother’s care.

[4] That same day, the trial court also issued a dispositional order that set multiple

requirements for Father, including: enroll and complete any program

recommended by the Family Case Manager or other service provider, complete

a parenting assessment, secure and maintain suitable housing and a stable

source of income, attend all scheduled visits with A.S., and participate in

Fatherhood Engagement Services. Ex. 7. DCS then referred Father for a

parental-functioning assessment and a mental-health assessment. Father never

met with the parental-functioning-assessment provider, but he did complete the

mental-health assessment. He was diagnosed with Attention Deficit

Hyperactivity Disorder (ADHD) and was referred to individual and group

therapy and additional services to deal with anger and stress management.

Father did not attend any follow-up sessions.

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 3 of 11 [5] Additionally, Father has failed to maintain stable housing and employment.

Between November 2014 and May 2016, he had at least nine different

addresses. He has lived in a motel in Plainfield, his car, Terre Haute, Florida,

Georgia, and Bloomington. Over this same period, Father has held at least six

different jobs, none for longer than six months. Father quit four of those jobs

and was laid off from a fifth.

[6] Regarding visitation with A.S., DCS arranged for Father to have supervised

visits three times a week in order to facilitate bonding and attachment. Father,

however, was inconsistent with his visits. From November 2014 to October

2015, Father had short, sporadic visits with A.S., including no contact with

A.S. in May or June 2015—when Father was living in Florida and Georgia.

When Father returned to Indiana, he resumed his sporadic visitation schedule.

Father then ceased all contact in October. Father did not attempt to contact or

visit A.S. again until January 2016—after the petition to terminate his rights

was filed. When he resumed his visits, Father saw A.S. approximately once a

month until April. In April, Father began having supervised visits for one hour

per week.

[7] Father was also ordered to participate in DCS’s Fatherhood Engagement

Services program, which was recommended to help Father gain financial

stability and maintain consistent visitation with A.S. Father initially failed to

comply with the trial court’s order but began participating in the program in

November 2015—a year after the court ordered participation. He worked with

a counselor to help him maintain his finances and secure stable housing.

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 4 of 11 [8] In December 2015, DCS petitioned the court to terminate Father’s parental

rights to A.S. A multi-day hearing was held in March and May 2016. Multiple

witnesses testified, including the Family Case Manager, the Guardian Ad

Litem (GAL), and Father.

[9] Megan Al-Hassani, the Family Case Manager, recommended that the court

terminate Father’s parental rights to A.S., who was almost two years old at the

time of the hearing. She recommended termination because, throughout A.S.’s

life, Father “had not been consistent in visiting [A.S.] to facilitate that bond and

attachment. [Father] did not follow through with any of the recommended

services to help alleviate or remedy the initial concerns that led to removal[.]”

Tr. p. 175. She acknowledged that Father had been working with Fatherhood

Engagement Services since November 2015, but his recent participation did not

change her recommendation because Father continued to display “little to no

interest in [A.S.].” Id. at 177. Al-Hassani stressed that termination of Father’s

parental rights and adoption for A.S. was in A.S.’s best interests.

[10] The GAL, Suzanne Conger, agreed with Al-Hassani. She recommended that

Father’s parental rights should be terminated because he had had no stability

since DCS became involved in 2014 and because he had failed to gain stability

even after re-engaging with DCS in November 2015—Father had moved at

least twice and held two or three different jobs. She stated that A.S. needed a

stable home because of his health issues, which included developmental

delays—he did not walk until he was eighteen months old and at almost two

years old he had only five vocabulary words when other children his age know

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 5 of 11 upwards of twenty-five words. Because of these delays, A.S. had to

communicate through sign language and continued to undergo speech,

occupational, and physical therapy. DCS set up these therapies for A.S., and

most of his appointments were conducted at Grandmother’s house. In addition

to his therapy appointments, Grandmother was spending one to two hours a

day doing therapy exercises at home. The GAL stated that termination of

Father’s parental rights and adoption was in A.S.’s best interests.

[11] Father disagreed with Al-Hassani’s and the GAL’s recommendations that

termination of his parental rights was in A.S.’s best interests. Father admitted

that, other than the initial mental-health assessment, he had not started any of

his recommended programs, including the parenting assessment. Regarding his

employment, Father was currently working full-time for a Bloomington-based

company, but he had been employed there for only a few months. He

emphasized that he had been more consistent with his visits with A.S. since

January 2016 and that he had supervised visits with A.S. for one hour each

week since April. Last, Father said that he had not missed any meetings with

Fatherhood Engagement Services’ counselors since starting with them in

November 2015. He was working on his finances—he had opened two bank

accounts—and to secure housing. At the time of the hearing, he was living in

Bloomington with his new girlfriend at her parents’ house. Father said that it

was a temporary situation and that the following week he had appointments to

find an apartment in Bloomington. Father concluded that he did not believe

that termination of his parental rights would be in A.S.’s best interests.

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 6 of 11 [12] The trial court agreed with Al-Hassani and the GAL and issued its termination

order in September 2016. The court entered numerous findings of fact and

conclusions, including:

67. [A.S.] has special needs, including inability to speak and slow development.

83. Because of instability in both housing and employment or income, and the lack of a bond between Father and [A.S.] and Father’s failure to engage in services to help him parent this special needs child and [A.S.’s] need for stability with [a] caregiver who will engage in occupational therapy, physical therapy, speech therapy and sign language, it is in the best interests of [A.S.] that Father’s rights be terminated.

Appellant’s App. Vol. II pp. 8-20. The court concluded: the conditions that

resulted in A.S.’s removal from Father’s home and continued placement

outside the home were not likely to be remedied; continuation of the parent-

child relationship posed a threat to A.S.’s well-being; termination was in A.S.’s

best interests; and DCS’s plan for adoption was satisfactory. Id. at 19.

[13] Father now appeals.2

2 We note that Father’s briefs are single-spaced in violation of Indiana Appellate Rule 43(E), which provides: “All text shall be double-spaced except footnotes, tables, charts, or similar material and text that is blocked and indented shall be single-spaced. Single-spaced lines shall be separated by at least 4-point spaces.”

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 7 of 11 Discussion and Decision [14] Father contends that there is insufficient evidence to support termination of his

parental rights. When reviewing the termination of parental rights, we do not

reweigh the evidence or judge witness credibility. In re K.T.K., 989 N.E.2d

1225, 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable

inferences that are most favorable to the judgment of the trial court. Id. When

a trial court has entered findings of fact and conclusions, we will not set aside

the trial court’s findings or judgment unless clearly erroneous. Id. To

determine whether a judgment terminating parental rights is clearly erroneous,

we review whether the evidence clearly and convincingly supports the trial

court’s findings and whether the findings clearly and convincingly support the

judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).

[15] A petition to terminate parental rights must allege, 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;

(C) that termination is in the best interests of the child; and

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 8 of 11 (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. In re K.T.K., 989 N.E.2d at 1231.

[16] Father argues that there is insufficient evidence to support the trial court’s

conclusion that there is a reasonable probability that the conditions that resulted

in A.S.’s removal or the reasons for placement outside the home will not be

remedied.3 He contends that the only reason DCS removed A.S. from his care

was due to his failure to “sufficiently visit and bond with his son.” Appellant’s

Br. p. 8.

[17] Father’s argument ignores the fact that DCS also cited his inability to maintain

stable housing as a reason for removal. Ex. 1; Appellee’s Br. p. 4. At the

termination hearing, Father stated that he still had not secured stable housing

and was living with his new girlfriend and her parents. He was hoping to move

into his own apartment in the next month or two. Before that, Father had at

least eight different addresses over the course of two years. A.S. requires

ongoing speech, physical, and occupational therapy, and most of his

appointments are conducted in the home. A.S. needs a stable home, with a

3 Father also argues that there is insufficient evidence to support the trial court’s conclusion that there is a reasonable probability that continuation of the parent-child relationship poses a threat to A.S.’s well-being. Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires clear and convincing evidence of only one of the circumstances listed in subsection (B). See R.J. v. Ind. Dep’t. of Child Servs., 56 N.E.3d 729 (Ind. Ct. App. 2016). Because we conclude that there is sufficient evidence to support the trial court’s conclusion that there is a reasonable probability that the conditions resulting in A.S.’s removal will not be remedied, we do not address this argument.

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 9 of 11 permanent address, so that he can get the therapies he needs. Father has shown

that he is unable to provide such an environment for A.S.

[18] Father also argues that the trial court failed to take into consideration evidence

of his changed conditions. These changes are to be balanced against habitual

patterns of conduct, and the trial court is to judge the parent’s fitness at the time

of the termination hearing. See In re K.E., 39 N.E.3d 641, 647 (Ind. 2015). As

proof of his changed conditions, Father highlights his participation in

Fatherhood Engagement Services, his consistent visits with A.S. since January

2016, and his employment history—noting that although he has had multiple

jobs since the CHINS petition was filed, he has been employed for the majority

of these proceedings.4

[19] Father’s argument omits that habitual conduct may include “lack of adequate

housing and employment, [and] the services offered to the parent and the

parent’s response to those services can also be evidence demonstrating that

conditions will be remedied.” Id. (quotations omitted). As already discussed,

Father has not maintained stable housing. Nor has he managed to maintain

stable employment. Father has had upwards of six different jobs during these

proceedings, with no job lasting longer than six months. The fact that he has

been employed for the majority of these proceedings is not evidence of stable

4 Father also challenges three of the trial court’s findings of fact. We do not address Father’s challenges because we find that the unchallenged findings, standing alone, are sufficient to support the trial court’s conclusions. See Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct. App. 2015), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 10 of 11 employment. Additionally, Father, by his own admission, failed to comply

with the trial court’s initial order that he participate in and complete services

recommended by DCS. He only began working with DCS four months before

the termination hearing. The trial court is within its discretion to disregard

efforts made only shortly before termination and put more weight on Father’s

history of conduct before those efforts. K.T.K., 989 N.E.2d at 1234. We

conclude that there is sufficient evidence to conclude that there is a reasonable

probability that the conditions that resulted in A.S.’s removal from Father or

the reasons for placement outside Father’s home will not be remedied.

[20] Affirmed.

Bailey, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A05-1610-JT-2398 | May 15, 2017 Page 11 of 11