In re: the Matter of the Involuntary Termination of the Parent-Child Relationship of C.L., a Minor Child and his Father, C.H., C.H. v. Marion County Department of Child Services (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), 09/12/2017, 10:17 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel G. Foote Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Matter of the, September 12, 2017
Involuntary Termination of the Court of Appeals Case No.
Parent-Child Relationship of 49A02-1703-JT-566
C.L., a Minor Child and his Appeal from the Marion Superior
Father, CH., Court
The Honorable Marilyn Moores,
C.H., Judge
The Honorable Larry Bradley,
Magistrate
Appellant-Respondent,
Trial Court Cause No.
v. 49D09-1603-JT-191
Marion County Department of
Child Services,
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 1 of 11
Appellee-Petitioner,
and,
Child Advocates, Inc.
Appellee (Guardian ad Litem).
Barnes, Judge.
Case Summary
[1] C.H. (“Father”) appeals the termination of his parental rights to his son, C.L.
We affirm.
Issue
[2] Father argues that the evidence is insufficient to support the termination of his
parental rights.
Facts
[3] C.L. was born in December 2011 to Father and A.L. (“Mother”). In April
2012, the Department of Child Services (“DCS”) removed C.L. and his older
sister1 from Mother’s care and filed a petition alleging that C.L. and his sister
were Children in Need of Services (“CHINS”). Father did not appear at the
1
Father is not the father of C.L.’s older sister.
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 2 of 11
April 19, 2012 detention hearing, and C.L. was placed in foster care. Father
also did not appear at a May 2, 2012 hearing, and C.L. was placed with his
maternal grandmother. Father appeared for the first time at a May 25, 2012
pretrial hearing. The trial court appointed a public defender for Father,
authorized supervised parenting time with C.L., and ordered Father to establish
paternity. Father also appeared at a pretrial hearing on June 15, 2012.
However, Father did not appear at the CHINS fact-finding hearing on July 20,
2012. Mother admitted that the children were CHINS and admitted that she
“lack[ed] independent housing and there was an incident of domestic violence
between she and [Father].” Exhibits at 85. Father’s counsel waived the fact-
finding hearing, and the trial court found that the children were CHINS.
Mother later signed voluntary consents for C.L.’s adoption.
[4] On August 17, 2012, the trial court entered a parental participation order and
dispositional order, but Father did not appear for the hearing. The trial court
ordered Father to contact the DCS case manager every week; keep all
appointments with service providers, the case manager, and the guardian ad
litem; sign all necessary releases; establish paternity; complete a parenting
assessment and any recommendations; and complete a domestic violence
assessment program.
[5] Father did not appear at additional hearings on November 16, 2012, February
22, 2013, May 24, 2013, August 23, 2013, and October 25, 2013. On January
31, 2014, the trial court held a permanency hearing, and the plan changed from
reunification to adoption. Father also did not appear for that hearing. The trial
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 3 of 11
court noted that DCS had not been in contact with Father since July 2012. On
May 9, 2014, the trial court held another periodic review hearing, and Father
did not appear. On June 18, 2014, Father’s counsel moved to withdraw her
appearance, and the trial court granted the request. Father also did not attend
child and family team meetings.
[6] On March 8, 2013, the State charged Father with Class A misdemeanor
domestic battery and Class A misdemeanor battery. On March 26, 2013,
Father pled guilty to misdemeanor domestic battery, and he was sentenced to
one year with 339 days suspended to probation. On May 14, 2013, the State
charged Father with Class A misdemeanor domestic battery, Class A
misdemeanor battery, Class A misdemeanor invasion of privacy, Class D
felony domestic battery, and Class D felony battery. Father pled guilty to Class
A misdemeanor invasion of privacy and the remainder of the charges against
him were dismissed. The trial court sentenced him to one year with 249 days
suspended to probation. In March 2014, Father violated his probation and was
ordered to serve his previously suspended sentence.
[7] In December 2015, the State charged Father with Level 5 felony dealing in a
narcotic drug (heroin), Level 6 felony possession of a narcotic drug (heroin),
Level 3 felony dealing in a narcotic drug (heroin), and Level 5 felony possession
of a narcotic drug (heroin). Father pled guilty to Level 5 felony dealing in a
narcotic drug, and the other charges were dismissed. The trial court sentenced
Father to four years with two years suspended to probation. Father’s executed
sentence was to be served on work release.
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 4 of 11
[8] DCS filed a petition to terminate Father’s parental rights to C.L. in February
2016, and a termination hearing was held in February 2017. At the time of the
termination hearing, Father was residing at the Duvall Residential Center, and
he estimated that he would be there for approximately six months. Father
testified that he had not seen C.L. in “[p]robably two years.” Tr. p. 27. The
trial court entered findings of fact and conclusions thereon granting DCS’s
petition to terminate Father’s parental rights. Father now appeals.
Analysis
[9] Father challenges the termination of his parental rights to C.L. The Fourteenth
Amendment to the United States Constitution protects the traditional right of
parents to establish a home and raise their children. In re I.A., 934 N.E.2d 1127,
1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of his or
her children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.(quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). “Indeed
the parent-child relationship is ‘one of the most valued relationships in our
culture.’” Id. (quoting Neal v. DeKalb County Div. of Family & Children, 796
N.E.2d 280, 285 (Ind. 2003)). We recognize, of course, that parental interests
are not absolute and must be subordinated to the child’s interests when
determining the proper disposition of a petition to terminate parental rights. Id.Thus, “‘[p]arental rights may be terminated when the parents are unable or
unwilling to meet their parental responsibilities.’” Id. (quoting In re D.D., 804
N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 5 of 11
[10] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. Id. We consider only the evidence and
reasonable inferences that are most favorable to the judgment. Id. We must
also give “due regard” to the trial court’s unique opportunity to judge the
credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial
court entered findings of fact and conclusions thereon in granting DCS’s
petition to terminate Father’s parental rights. When reviewing findings of fact
and conclusions thereon entered in a case involving a termination of parental
rights, we apply a two-tiered standard of review. First, we determine whether
the evidence supports the findings, and second, we determine whether the
findings support the judgment. Id. We will set aside the trial court’s judgment
only if it is clearly erroneous. Id. A judgment is clearly erroneous if the
findings do not support the trial court’s conclusions or the conclusions do not
support the judgment. Id.[11] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in part:
(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
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 6 of 11
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
(D) that there is a satisfactory plan for the care and
treatment of the child.
DCS must establish these allegations by clear and convincing evidence. Egly v.
Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).
I. Changed Conditions
[12] Father challenges the trial court’s finding of a reasonable probability that the
conditions resulting in C.L.’s removal or the reasons for placement outside
Father’s home will not be remedied.2 In making this determination, the trial
2
Father also argues that the trial court’s conclusion that the continuation of the parent-child relationship
poses a threat to the well-being of C.L. is clearly erroneous. Indiana Code Section 31-35-2-4(b)(2)(B) is
written in the disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS adjudications, is
inapplicable here. Consequently, DCS was required to demonstrate by clear and convincing evidence a
reasonable probability that either: (1) the conditions that resulted in C.L.’s removal or the reasons for
placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-child
relationship poses a threat to the well-being of C.L. The trial court found a reasonable probability that the
conditions that resulted in C.L.’s removal and continued placement outside Father’s home would not be
remedied, and there is sufficient evidence in the record to support the trial court’s conclusion. Thus, we need
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 7 of 11
court must judge a parent’s fitness to care for his or her child at the time of the
termination hearing and take into consideration evidence of changed
conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.
The trial court must also “evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” Id.[13] The trial court found:
There is a reasonable probability that the conditions that resulted
in [C.L.’s] removal and continued placement outside the home
will not be remedied by his father. [Father] minimally
participated in the CHINS matter while open for almost five
years. He has not made any true effort to see his child proving
his unwillingness to be an actual parent. Further, [Father’s]
criminal activity places reasonable doubt as to whether he would
even remain available to engage in services and parent.
Appellant’s App. Vol. II p. 21.
[14] Father argues that DCS failed to demonstrate that the conditions that led to
C.L.’s continued placement outside Father’s home would not be remedied. In
his reply brief, Father contends that the conditions that led to C.L.’s removal
were remedied by Mother’s consent to adoption and by C.L.’s placement with
his maternal grandmother.
not determine whether there was a reasonable probability that the continuation of the parent-child
relationship poses a threat to C.L.’s well-being. See, e.g., Bester v. Lake County Office of Family & Children, 839
N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App. 2001), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 8 of 11
[15] Although the reasons for C.L.’s initial removal from Mother may not have
related to Father, DCS demonstrated a reasonable probability that the reasons
for placement outside Father’s home would not be remedied. DCS presented
evidence that, although the CHINS case began in April 2012 and the
termination hearing was in February 2017, Father made little to no effort to
parent C.L. At the time of the termination hearing, Father had not seen C.L. in
at least two years, he did not participate in services ordered during the CHINS
action, and he continued engaging in criminal activities during the CHINS
action. Although Father was aware of the CHINS action, he did not maintain
contact with DCS and did not attend hearings on the matter. The trial court’s
finding on this issue is not clearly erroneous.
II. Best Interests
[16] Father challenges the trial court’s finding that termination of his parental rights
is in C.L.’s best interests. In determining what is in the best interests of a child,
the trial court is required to look at the totality of the evidence. D.D., 804
N.E.2d at 267. In doing so, the trial court must subordinate the interests of the
parents to those of the child involved. Id.[17] Father argues that the “extreme measure” of termination is not in C.L.’s best
interests. Appellant’s Br. p. 18. According to Father, he deserves additional
time to reunify with C.L. while C.L. remains in the care of his maternal
grandmother. Father relies on In re G.Y., 904 N.E.2d 1257 (Ind. 2009), In re
J.M., 908 N.E.2d 191 (Ind. 2009), and H.G. v. Ind. Dep’t of Child Servs., 959
N.E.2d 272 (Ind. Ct. App. 2001), trans. denied, for the proposition that his
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 9 of 11
incarceration is insufficient to warrant the termination of his parental rights. In
these cases, the courts concluded that termination of incarcerated parents’
parental rights was not warranted because the parents were bonded with the
children, were soon to be released from incarceration, were unlikely to reoffend,
and demonstrated a commitment and interest in maintaining a relationship
with the child. Here, however, Father is not bonded with C.L., we cannot say
Father is unlikely to reoffend, and Father has not demonstrated a commitment
and interest in maintaining a parental relationship with C.L. The cases cited by
Father are distinguishable.
[18] DCS presented evidence that C.L. has lived with his grandmother most of his
life, he is bonded with her, and he is doing well. The DCS case manager and
the guardian ad litem both recommended termination of Father’s parental
rights. Given Father’s lack of a relationship with C.L., continued criminal
activity, and the fact that C.L. is doing well with his grandmother, we conclude
the trial court’s finding that termination is in C.L.’s best interests is not clearly
erroneous.
III. Satisfactory Plan
[19] Finally, Father also challenges the trial court’s finding that there is a satisfactory
plan for the care and treatment of C.L. Indiana courts have held that for a plan
to be “‘satisfactory,’” for the purposes of the termination statute, it “‘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.’” In re A.S.,
17 N.E.3d 994, 1007 (Ind. Ct. App. 2014) (quoting Lang v. Starke Cnty. Office of
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 10 of 11
Family and Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007), trans. denied),
trans. denied.
[20] Although Father suggests that C.L. should merely remain with his grandmother
while Father has additional time to reunify, the trial court properly rejected this
argument. This argument was addressed in our discussion of C.L.’s best
interests and the likelihood that the conditions leading to C.L.’s placement
outside of Father’s home would be remedied. DCS’s plan for C.L. is adoption
by his grandmother, and that is a satisfactory plan. See, e.g., Lang, 861 N.E.2d
at 375 (holding that adoption and independent living were satisfactory plans).
The trial court’s finding that DCS had a satisfactory plan is not clearly
erroneous.
Conclusion
[21] The evidence is sufficient to support the termination of Father’s parental rights
to C.L. We affirm.
[22] Affirmed.
May, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-566 | September 12, 2017 Page 11 of 11