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

• Court: Indiana Court of Appeals
• Decided: April 24, 2017
• Docket: 15A04-1608-JT-1805
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 24 2017, 9:15 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court 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 Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana

Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination April 24, 2017 of the Parent-Child Relationship Court of Appeals Case No. of J.F. (Child) and M.F. 15A04-1608-JT-1805 (Father); Appeal from the Dearborn Circuit Court M.F. (Father), The Honorable James D. Appellant-Respondent, Humphrey, Judge Trial Court Cause No. v. 15C01-1603-JT-10

The Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 1 of 14 May, Judge.

[1] M.F. (“Father”) appeals the termination of his parental rights to J.F. (“Child”).

He argues the evidence was insufficient to support termination. We affirm.

Facts and Procedural History [2] Child was born to Father and T.W. (“Mother”) 1 on June 26, 2012. Child has

Down’s Syndrome and requires special care. On December 18, 2014, the

Department of Child Services (“DCS”) received a report of neglect of Child and

safety concerns due to frequent domestic violence occurring between Father

and Mother (collectively, “Parents”). The report indicated Father was

physically abusive toward Mother in the presence of Child, but not physically

abusive to Child.

[3] When DCS first became involved with the family, Parents were cooperative

with DCS and allowed DCS case managers to enter the home and to observe

and speak with Child. Because Parents were cooperative, DCS allowed Child

to remain in the home with Parents while it conducted a thirty-day initial

assessment of the home environment.

[4] As part of DCS’s initial assessment, it reviewed Parents’ criminal histories and

hospital records. DCS discovered Mother was arrested in June 2014 and

1 Mother voluntarily relinquished her parental rights on June 23, 2016, and does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 2 of 14 charged with criminal mischief for breaking into Father’s home while

intoxicated. DCS also reviewed hospital records showing Mother received

treatment on June 20, 2014, for injuries she sustained on her hands and wrists.

The treatment records indicated the cause of the injuries was blunt force trauma

and Mother had reported Father hit her with a baseball bat. 2

[5] Over the course of DCS’s initial assessment of the home environment, Parents

became less cooperative, until neither parent would allow DCS case managers

to enter the home or see Child. On February 25, 2015, DCS filed a petition

alleging Child was a Child in Need of Services (“CHINS”). On March 4, 2015,

the court held an initial hearing on DCS’s petition. Parents appeared. At the

hearing, DCS requested permission from the court to remove Child from the

home due to Parents’ lack of cooperation and DCS’s growing concerns of

domestic violence based on Mother having filed for a protective order from

Father in January 2015. 3 At the time of the hearing, Child was staying at a

relative’s home in Ohio. Finding it was in the best interest of Child, the court

granted DCS’s request to remove Child. DCS removed Child from the Ohio

relative’s home on March 4, 2015, and placed him in a foster home. Child

never returned to Parents’ care.

2 The record does not indicate Father was charged for this act. 3 The record indicates Mother filed for a protective order sometime in January 2015 but did not “follow through” with the order. (Ex. Vol. I at 64.)

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 3 of 14 [6] On May 21, 2015, the court held a fact-finding hearing on the CHINS petition.

Parents appeared in person and by counsel. DCS and Parents signed a written

agreement stipulating Child was a CHINS. Parents agreed that, as a result of

the conflicts in the home, Child’s physical or mental condition may be seriously

impaired or seriously endangered. Based on Parents’ admissions, the court

entered an order adjudicating Child a CHINS on June 4, 2015.

[7] On June 10, 2015, the court held a dispositional hearing. The court entered a

dispositional order for the formal removal of Child from Parents’ care and

granted DCS wardship of Child. The court ordered Child remain in his current

foster care placement. The court ordered Parents to participate in homebased

therapy, attend all regularly scheduled visitations with Child, attend an

Intensive Family Preservation program, complete substance abuse assessments

and counseling through Community Mental Health Center (“CMHC”),

maintain suitable, safe, and stable housing, maintain legal and stable income,

obey the law, undergo random drug screenings, undergo psychological

evaluations, undergo a domestic violence assessment, and provide Child with a

safe, secure and nurturing environment free from abuse and neglect. The court

scheduled a hearing to review Parents’ progress on September 21, 2015.

[8] On July 15, 2015, Father was arrested and charged with strangulation and

domestic battery against Mother. He was released on bond. As a condition of

his pre-trial release, the court ordered Father to have no contact with Mother

and ordered Father to attend counseling at CMHC based on DCS’s

recommendation. On August 19, 2015, Father was arrested for violating the no

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 4 of 14 contact order when he was pulled over for a traffic stop and Mother was in the

car. Father was charged with invasion of privacy based on the violation.

[9] The juvenile court held the periodic review hearing on September 21, 2015.

The court noted Father’s arrests for strangulation and battery, the court’s

imposition of the protective order, and Father’s subsequent violation of that

order. The court further noted Father had not, as of the date of the hearing,

attended any counseling sessions as recommended by DCS. Father had been

inconsistent with attending visitation and reported “working a lot of hours.”

(Ex. Vol. I at 86.) Supervised visits had been moved to a room that had an

observation room so that DCS could observe Father’s interactions with Child.

DCS reported Father “use[d] the visits as a time to communicate with the

service provider rather than focusing on the child[,]” (id.), that he “struggle[d]

to stay for the entire two hours” when he did visit, (id.), and Father “report[ed]

that he must return to work and [could not] stay for the full visits.” (Id.)

[10] As to Mother, the court found she had been “moving from place to place,” (id.),

and although CMHC offered to help Mother find housing, Mother refused help.

Mother had tested positive for THC on July 31, 2015, and for amphetamine

and Methamphetamine on August 28, 2015. At the time of the hearing,

Mother was living with a friend in Batesville, Indiana, and was employed. The

court noted Child continued to “grow and develop,” (id. at 183), in his foster

care, was attending pre-school, and was “doing very well.” (Id.) The court

indicated the permanency plan remained reunification.

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 5 of 14 [11] In November 2015, Father signed a pretrial diversion agreement with the State

under Cause Number 15D02-1507-0233 for his strangulation charge. That

agreement required he not commit any criminal offenses for thirty months and

not have contact with Mother.

[12] The court held a periodic review hearing on December 17, 2015. Both Parents

appeared. Since the last review hearing, Parents were tested for drugs five

times. Mother tested positive for illegal drugs, including amphetamine and

Methamphetamine, all five times, but Father tested negative for any drug use

each time. Father still had not attended or made any appointments for

individual counseling. The court noted due to Father’s inconsistency with

attending supervised visits, he was sent a letter with the visitation schedule and

required to call twenty-four hours in advance of the visit to confirm his

attendance. The court found Parents “ha[d] not enhanced their ability to fulfill

their parental obligations.” (Id.) The court ordered Father to engage in

individual therapy at CMHC. The court maintained the permanency plan as

reunification.

[13] In February 2016, Father began counseling sessions with Corinna Davies, a

therapist at CMHC, to work on relational dynamics within the family. Father

attended a total of three sessions and was “resistant” to counseling. (Tr. at

103.) During his limited treatment, Davies diagnosed Father with Narcissistic

Personality Disorder. Davies requested Father continue to schedule counseling

appointments with her, but Father failed to do so and did not return to

counseling after the first three sessions.

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 6 of 14 [14] The court held a periodic review hearing on February 25, 2016. DCS reported

Father was required to undergo drug screenings at least once a week, but since

the most recent review hearing in December 2016, Father had undergone only

three drug screenings. Father tested negative at each. DCS also reported

Father had visited Child only twice since the last hearing and, although Father

was aware Child had undergone surgery, Father did not visit Child while he

was in the hospital. Mother had been required to undergo drug screening twice

a week, but since the last review hearing in December, Mother had undergone

only five total drug screenings. DCS requested the permanency plan be

changed from reunification to adoption, and it requested permission to file a

petition to terminate parental rights. On March 4, 2016, the court granted DCS

permission to file a petition to terminate Parents’ parental rights to Child. On

March 11, 2016, DCS filed its Verified Petition for Termination of Parents’

Parental Rights.

[15] On June 1 and June 23, 2016, the trial court held fact-finding hearings on

DCS’s petition. The court heard testimony from DCS Family Case Manager

Steve Cruse, CMHC Case Manager Tres Lynette, Davies, Child’s foster parent,

and Father. Lynette, who observed the majority of supervised visitations

between Parents and Child, testified that, from the beginning of the case until

roughly the end of July 2015, Father brought diapers, wipes, food, shoes, and

“whatever else was needed” for Child to visits, but that Father’s effort tapered

throughout the case. (Tr. at 121.) Specifically, Father stopped providing

diapers and wipes after the court ordered Father to pay child support to Child’s

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 7 of 14 foster parent. Lynette described Father’s interaction with Child as “minimal,”

(id. at 122), and noted “[a]t times it was hard for him to sit in a room with

[Child] for two hours. He attended to his phone, he cut visits short, sitting on a

couch rolling a ball back and forth with his foot while playing on the phone.”

(Id. at 123.) Although Child was roughly two and a half years old, Child was

functioning at the level of a six-month old and had trouble expressing himself.

One method Child used to communicate was signing. Lynette testified Father

was not aware of the sign language, Lynette typically had to “translate,” (id. at

127), and Father made little effort to learn how to communicate with Child.

Lynette further testified she recommended Father begin working with her

individually on “building coping skills [and] helping [Father] understand the

importance of positive communication and expressive language,” but Father

declined those services. (Id. at 113-14.) Lynette testified Father’s attendance

for visits declined throughout the case and Father told her “he knows they have

not made progress[,] that if anything they’ve gone backwards.” (Id. at 129.)

[16] On June 23, 2016, Mother admitted the allegations in the petition to terminate

her parental rights and voluntarily relinquished her parental rights. On July 11,

2016, the court terminated Father’s parental rights.

Discussion and Decision [17] “The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children.” In re

G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied. To terminate a parent’s

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 8 of 14 rights, the State must file a petition in accordance with Indiana Code Section

31-35-2-4 and then prove the allegations therein by clear and convincing

evidence. Id. at 1260-61. If the court finds the allegations in the petition are

true, it must terminate the parent-child relationship. Ind. Code § 31-35-2-8; In

re N.G., 51 N.E.3d 1167, 1170 (Ind. 2016).

[18] A petition to terminate the parent-child relationship must allege:

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

(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.

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 9 of 14 (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

(D) that there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2). The trial court must enter findings of fact to

support each of its conclusions as to those allegations. Ind. Code § 31-35-2-8(c).

[19] We review termination of parental rights with great deference. In re K.S., D.S.,

& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

evidence or judge credibility of 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. We apply a two-

tiered standard of review: we determine first whether the evidence clearly and

convincingly supports the findings, and second whether the findings clearly and

convincingly support the conclusions. In re E.M., 4 N.E.3d 636, 642 (Ind.

2014). However, where a party challenges the judgment but does not challenge

the findings of fact as unsupported by the evidence, we look only to the findings

to determine whether they support the judgment. Smith v. Miller Builders, Inc.,

741 N.E.2d 731, 734 (Ind. Ct. App. 2000). We will set aside a judgment

terminating a parent’s rights only if it is clearly erroneous. In re L.S., 717

N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534

U.S. 1161 (2002).

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 10 of 14 [20] Father concedes the State proved subsections (A), (C), and (D) of Indiana Code

Section 31-35-2-4(b)(2). He challenges only the court’s conclusion under

subsection (B) that there was a reasonable probability the conditions that

resulted in Child’s removal will not be remedied.

[21] The condition that resulted in Child’s removal from the home was neglect due

to domestic violence occurring in the home in the presence of Child. Father

argues “th[e] issue was remedied as Mother was no longer living in the home.”

(Appellant’s Br. at 21.) He claims he had “no criminal history” and “Mother’s

drug abuse caused the conflict in the home and that issue was resolved with

Mother no longer living in the home.” (Id.) We disagree.

[22] As the trial court found, Father was arrested on July 15, 2015, and charged with

strangulation and domestic battery against Mother. As a result of these

charges, the court ordered Father to have no contact with Mother. During this

time, Mother was not living with Father, but was staying with a friend and

looking for a place to live. The trial court further noted Father was

subsequently arrested in August 2015 for violating the no-contact order when

he was driving with Mother. Thus, while Father argues “Mother’s drug abuse

caused the conflict in the home” and that issue was “resolved with Mother no

longer living in the home,” the court’s findings show that Mother’s living in the

home was not the root of Father’s issues. (Id.) Father still committed

strangulation and battery and subsequently violated the court’s protective order

while this CHINS case was proceeding and Mother was no longer living in his

home.

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 11 of 14 [23] In addition, the court’s findings demonstrate that Father failed to take any

substantial steps towards improving his relational skills. The court first ordered

Father to seek counseling in its dispositional decree entered June 10, 2015. The

court again ordered Father to seek counseling after the strangulation and

battery charges in July 2015. Father failed to seek counseling until February

2016, when he finally met with Davies at CMHC. Even then, Father gave up

on attending after only three sessions. Furthermore, in the limited time Davies

interacted with Father, she diagnosed Father with Narcissistic Personality

Disorder. At the termination hearing, Davies testified Father “wasn’t apt to

own up to . . . his part in what had occurred, what actions had led up to Child’s

removal.” (Tr. at 104.) In addition, Father declined services recommended by

Lynette to work on improving his communication and relationship with Child.

[24] Father also points to his ability to maintain gainful employment, income, and a

household as evidence of his parental fitness. However, Child was not removed

from Father’s care based on his inability to maintain a home, but because of the

domestic violence and neglect that occurred in the home. In concluding there

was a reasonable probability the conditions which resulted in Child’s removal

would not be remedied, the trial court cited Father’s refusal to successfully

complete any counseling or engage meaningfully with Child. In light of these

findings, Father’s ability to maintain a house and income cannot, on its own,

serve as a basis for reversal. See In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008)

(“[I]f the evidence and inferences support the trial court’s decision, we must

affirm.”), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 12 of 14 [25] Even on appeal, Father takes no responsibility for his actions leading to the

termination of his parental rights. He does not challenge the court’s findings

that he made no progress after this case was opened and even “admitted no

progress has been made.” (App. Vol. II at 24.) Instead, Father’s arguments

essentially amount to blaming Mother for the events that lead to Child’s

removal from his care and the subsequent termination of his parental rights. In

terminating Father’s parental rights, the trial court specifically noted it

considered “Father’s lack of cooperation, his history of and continuing acts of

violence and lack of effort and progress in communication and connecting with

the child.” (Id. at 27.) Based on the court’s unchallenged findings, we cannot

say the court erred in concluding there was a reasonable probability the

conditions would not be remedied, as required under Indiana Code section 31-

35-2-4(b)(2)(B)(i). 4

Conclusion

4 Because our legislature wrote subsection (B) in the disjunctive, a trial court needs to find only one of the three requirements established by clear and convincing evidence before terminating parental rights. In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002). Nevertheless, we note the trial court found there was a reasonable probability under subsection (B)(i) the conditions that resulted in Child’s removal or continued placement outside the home would not be remedied by Father and under subsection (B)(ii) the continuation of the parent-child relationship poses a threat to the well-being of Child. (App. Vol. II at 27.) Father challenges both conclusions. Because there is sufficient evidence the conditions under which Child was removed would not be remedied under (B)(i), we need not address the court’s conclusion under (B)(ii).

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 13 of 14 [26] The trial court’s unchallenged findings support its conclusions. Accordingly,

we affirm its decision to terminate Father’s parental rights.

[27] Affirmed.

Najam, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A04-1608-JT-1805 | April 24, 2017 Page 14 of 14