In the Matter of the Involuntary Termination of the Parent-Child Relationship of: T.J.C., Jr (Minor Children), and T.J.C. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 16 2020, 8:41 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE:
Daniel G. Foote INDIANA DEPARTMENT OF
Indianapolis, Indiana CHILD SERVICES
Curtis T. Hill, Jr.
Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
ATTORNEY FOR APPELLEE:
CHILD ADVOCATES, INC.
DeDe Connor
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary April 16, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: T.J.C., Jr, C.C., 19A-JT-2298
and T.E.C. (Minor Children), Appeal from the Marion Superior
and Court
The Honorable Mark A. Jones,
T.J.C. (Father), Judge
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 1 of 18
Appellant-Respondent, The Honorable Peter Haughan,
Magistrate
v. Trial Court Cause No.
49D15-1901-JT-143
The Indiana Department of 49D15-1901-JT-144
Child Services, 49D15-1901-JT-145
Appellee-Petitioner,
and
Child Advocates, Inc.,
Guardian ad Litem.
Tavitas, Judge.
Case Summary
[1] T.J.C. (“Father”) appeals the termination of his parental rights to T.J.C., Jr.,
C.C., and T.C. (collectively, the “Children”). We affirm.
Issue
[2] Father raises three issues for our review; however, we revise and restate into a
single issue of whether the evidence is sufficient to support termination of
Father’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 2 of 18
Facts
[3] Father and A.C. (“Mother”) 1 have four children: T.J.C., Jr., born in 2011; C.C.,
born in 2012; T.C., born in 2014; and C.A., 2 born in 2015. In 2015, a domestic
violence event occurred between Mother and Father.
[4] On July 7, 2015, the Marion County Department of Child Services (“DCS”)
filed a petition alleging the Children were children in need of services
(“CHINS”). The petition alleged, in part, that: (1) Mother and Father engaged
in acts of domestic violence in the presence of the Children; (2) Mother and
Father have not followed through with C.C.’s and T.C.’s asthma treatments
and treatments stemming from a prior car accident; and (3) the Children have
been without a stable home for the past year. The following day, on July 8,
2015, the trial court held an initial hearing and removed the Children from the
home. The children were placed with their maternal great aunt.
[5] On October 14, 2015, the trial court entered an order adjudicating the Children
as CHINS pursuant to Mother’s admission and Father’s waiver of the fact
finding hearing and entered a dispositional decree. The parental participation
order required Father to: (1) participate in a home-based therapy program; (2)
1
Mother’s rights were terminated prior to the termination of Father’s parental rights. Mother is not a party
to this appeal; therefore, we will focus on facts only related to Father.
2
C.A. is not one of the Children at issue in this appeal. C.A. was adjudicated a CHINS in another
proceeding on February 6, 2019; however, at the termination fact finding hearing regarding the Children,
some evidence was presented from service providers regarding things learned about Father during C.A.’s
CHINS case as well. We, therefore, will focus on the facts as they relate to the Children and only provide
facts regarding C.A. when relevant.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 3 of 18
participate in a home-based case management program; and (3) continue
domestic violence services with Fall Creek.
[6] As a result of the incident between Mother and Father in 2015, Father pleaded
guilty to criminal confinement, a Class A misdemeanor, and served three
months in jail. 3 Over the course of the CHINS proceeding, service providers
also learned that Father was injured in three separate shooting incidents: once
in the leg (unknown date); once in the mouth and shoulder (2017); and once in
the back (2018).
[7] LaShawn Lewis, a family case manager (“FCM”) with DCS, worked with
Father and the Children from June 2016 until May 2018. In October 2016,
Father’s supervised visits resumed, and unsupervised visits ended after the
Children touched one another inappropriately and shared that they watched
pornography at Father’s home. The Children also reported that Father slept
during their visits. Due to issues with the Children, their maternal great aunt
requested the Children be removed from her home in October 2016, and the
Children were placed in foster care in Fort Wayne.
3
Several other charges as a result of the incident were dismissed, including: battery with bodily injury to a
pregnant woman, a Level 5 felony; domestic battery committed in the presence of a child less than 16 years
old, a Level 6 felony; battery in the presence of a child when the victim is a member of the household, a Level
6 felony; domestic battery, a Class A misdemeanor; and battery resulting in bodily injury, a Class A
misdemeanor. Father also has prior convictions for possession of marijuana, a misdemeanor, in 2010 as well
as a subsequent probation violation; resisting law enforcement, a Class A misdemeanor, and possession of
marijuana, a Class A misdemeanor, in 2014 as well as a subsequent probation violation.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 4 of 18
[8] After October 2016, FCM Lewis attempted to contact Father several times;
however, she was unable to reach Father, and paternal grandmother told FCM
Lewis that Father moved out of state. Father also missed several hearings
during the CHINS and termination process. Accordingly, in October 2016,
Father was discharged from services due to non-compliance.
[9] In March 2017, the Children returned to their maternal great aunt’s home;
however, the Children were removed from their maternal great aunt’s home in
August 2017 pursuant to her request. The Children were placed with paternal
grandmother. Subsequently, the Children’s actions became more “aggressive,”
“defiant, and “destructive.” Tr. Vol. II p. 72. When FCM Lewis visited the
Children at paternal grandmother’s home, the home was “very, very chaotic,”
and the Children were “arguing, bickering, [and] yelling” at one another in the
confines of paternal grandmother’s one-bedroom apartment. Id. at 73. Much
of the Children’s misbehavior, according to service providers, stems from lack
of stability. FCM Lewis, however, has seen improvement in the Children’s
behaviors as their participation in services continues.
[10] In April 2017, Sherma Jackson, a home-based therapist, began working as the
Children’s therapist. Jackson also saw improvement in the Children, generally,
and in the Children’s relationship with one another. In November 2017, FCM
Lewis heard from Father for the first time since October 2016. At that time,
Father indicated to FCM Lewis that he would consent to paternal
grandmother’s adoption of the Children.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 5 of 18
[11] FCM Jessica Downer took over as FCM in May 2018 and was unable to
contact Father. In July 2018, the Children were removed from paternal
grandmother’s home and placed into foster care after paternal grandmother
expressed that she was too stressed and unable to care for the Children.
[12] Meanwhile, DCS also began proceedings for C.A.’s CHINS case on October
23, 2018. 4 During C.A.’s CHINS case, Father was referred to therapy to deal
with trauma, mental health, and anger issues.
[13] In October 2018, FCM Downer was still unable to locate Father for C.A.’s
CHINS. In January 2019, FCM Downer finally heard from Father, who told
FCM Downer that he was staying in Fort Wayne; however, Father still did not
provide an address. Later in January 2019, while in court, Father told FCM
Downer that he had been in North Dakota for several months, returned to Fort
Wayne, and now lived in Indianapolis.
[14] On January 28, 2019, DCS filed a petition to terminate Father’s parental rights.
On February 6, 2019, Father was charged with operating a vehicle while
intoxicated, a Class C misdemeanor; and operating a vehicle with a Schedule I
or II controlled substance in his body, a Class C misdemeanor. 5
4
In C.A.’s CHINS case, Father missed the CHINS permanency hearing and missed twelve visits, citing a
variety of reasons, including his work schedule and having to help a relative with their car. Father did not do
visits with C.A. at his home due to his current living situation. In addition, FCM Downer was still unable to
reach Father as late as April 2019 at the phone number he provided.
5
Law enforcement found Father sitting behind the wheel of a stopped motor vehicle, while the engine was
running, near an intersection in Indianapolis.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 6 of 18
[15] Father’s termination of parental rights fact finding hearing was held on June 10
and 18, 2019. Witnesses testified to the foregoing facts. FCM Downer testified
that: (1) FCM Downer has been unable to make new referrals for C.A.’s
CHINS case because Father has not provided an address or consistent phone
number; (2) the “domestic violence” between Mother and Father does not
appear to still exist as Mother and Father are no longer in a relationship, tr. vol.
II p. 138; (3) other conditions, such as instability of Father’s housing, preclude
the Children from being placed with Father; (4) DCS’s plan for the Children is
adoption with the foster father, who is considering adoption and has an
appropriate home; and (5) Father’s parental rights should be terminated in
order to obtain stability and structure for the Children. According to Joyce
Box, the guardian ad litem (“GAL”), the foster father is considering adoption,
which she believed to be in the Children’s best interests.
[16] Michelle Ceaser, a home-based therapist with Families First, testified that she
met Father in April 2019, during C.A.’s CHINS case. Father was renting a
room and sharing common space with many other tenants he did not know.
Father disclosed to Ceaser that Father’s substance abuse history includes
marijuana and alcohol use beginning at age twelve, as well as the use of ecstasy
and other pills at varying times. Ceaser was never able to observe Father with
C.A. because Father exceeded the number of cancellations permitted for
Ceaser’s observation.
[17] Father testified that he went to North Dakota for a year and obtained a more
lucrative job earning $30.00 per hour because he was told that Mother would be
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 7 of 18
receiving custody of the Children; Father’s current living situation is not
permanent; and Father needs help securing housing.
[18] On August 28, 2019, the trial court entered an order terminating Father’s
parental rights. The trial court’s order issued 104 findings of fact and
conclusions thereon, including:
89. Father has not seen the children through DCS or service
providers since 2016.
90. As of July 2019, the children will have been removed from
Father’s care for four years.
91. Father was aware of [the] CHINS matter, yet chose to stop
parenting time.
92. Father chose to move out of state and absent himself from the
children.
93. Father stopped participating in services.
94. Father’s last appearance in the children’s CHINS matter was
July 2016. He did not attend any further hearings in their
CHINS cases until June 5, 2019, nearly three years later.
Appellant’s App. Vol. II p. 33. The trial court concluded that the conditions
that led to the Children’s removal will not be remedied; continuation of the
parent-child relationship poses a threat to the Children’s well-being; termination
of the parent-child relationship is in the Children’s best interest; and the
satisfactory plan for the Children is adoption.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 8 of 18
Analysis
[19] Father appeals the termination of his parental rights. The Fourteenth
Amendment to the United States Constitution protects the traditional right of
parents to establish a home and raise their children. In re K.T.K. v. Indiana Dept.
of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A]
parent’s interest in the upbringing of [his or her] child is ‘perhaps the oldest of
the fundamental liberty interests recognized by th[e] [c]ourt[s].’” Id. (quoting
Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, of
course, that parental interests are not absolute and must be subordinated to the
child’s best 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 by
failing to provide for the child’s immediate and long-term needs.’” In re K.T.K.,
989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied).
[20] Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter
findings of fact that support the entry of the conclusions required by subsections
(a) and (b)” when granting a petition to terminate parental rights. 6 Here, the
6
Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
delinquent child or CHINS, provide as follows:
(a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
allegations in a petition described in section 4 of this chapter are true, the court shall
terminate the parent-child relationship.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 9 of 18
trial court did enter 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 the 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.[21] 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:
(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.
(b) If the court does not find that the allegations in the petition are true, the court shall
dismiss the petition.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 10 of 18
(ii) The 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 19A-JT-2298 | April 16, 2020 Page 11 of 18
(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. In re
V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
[22] Father “does not challenge the Juvenile Court’s detailed and extensive Findings
of Fact.” Appellant’s Br. p. 29. Instead, Father argues that the evidence is
insufficient to support the trial court’s conclusions that: (1) the conditions that
led to the Children’s removal will not be remedied and the continuation of the
parent-child relationship poses a threat to the Children’s well-being; (2)
termination is in the Children’s best interests; and (3) adoption is the
satisfactory plan for the Children. 7
A. Reasons for Removal
[23] “In determining whether ‘the conditions that resulted in the [Child’s] removal .
. . will not be remedied,’ we ‘engage in a two-step analysis.’” In re E.M., 4
N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “First,
we identify the conditions that led to removal; and second, we ‘determine
whether there is a reasonable probability that those conditions will not be
remedied.’” Id. In analyzing this second step, the trial court judges the parent’s
7
In his brief, Father’s three arguments in his Statement of Issues are listed as: (1) sufficiency of the evidence;
(2) whether the trial court’s conclusions and order are contrary to law; and (3) whether the matter should be
remanded until the parental rights of C.A. are determined. Father, however, focuses the substance of his
arguments on the sufficiency of the evidence as to each element of the termination statute. We, therefore,
will focus on the issues Father has raised in his brief despite his categorization of the issues.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 12 of 18
fitness “as of the time of the termination proceeding, taking into consideration
evidence of changed conditions.” Id. (quoting Bester v. Lake Cty. Office of Family
& Children, 839 N.E.2d 143, 152 (Ind. 2005)). “We entrust that delicate balance
to the trial court, which has discretion to weigh a parent’s prior history more
heavily than efforts made only shortly before termination.” Id. “Requiring trial
courts to give due regard to changed conditions does not preclude them from
finding that parents’ past behavior is the best predictor of their future behavior.”
Id.[24] The trial court found:
It is highly probable that these conditions will not be remedied.
The children’s CHINS cases have been ongoing for over four (4)
years. From the time Father was a juvenile until the present,
Father has engaged in criminal behavior and behavior violating
the terms of probation which resulted in his repeated
incarceration. Father accepted no responsibility for his part in
the violent, tumultuous relationship with Mother. Although
Father claims to have made sufficient income, he still does not
have housing that is safe and sufficient for the children.
Throughout the life of the CHINS cases, Father has continued to
neglect the children’s needs for safety and stability. Father did
not successfully engage in and complete the court-ordered
services of a home-based therapy program and a home-based
case management program. After unsupervised visits with
Father, the children had begun to exhibit sexualized behaviors.
The children disclosed that they watched pornography while in
the care of Father, that Father would sleep while they were
visiting with him, and that they would see Mother when they
visited with Father. Father voluntarily chose to leave Indiana,
move to North Dakota, and stop visiting his children for a long
period of time. Father did not maintain contact with DCS for a
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 13 of 18
couple of years. When he returned to Indiana, his contact with
DCS has been inconsistent. His visits with his other child,
[C.A.], have been inconsistent. There is a substantial probability
of future neglect and deprivation of the children if they were in
Father’s care and custody.
Appellant’s App. Vol. II pp. 34-35.
[25] While it is true that the domestic violence issue between Mother and Father
abated, this was not the only reason for the Children’s removal and continued
placement outside of Father’s home. The initial CHINS petition alleged that
Father and Mother were unable to provide stable housing for the Children; such
was still the case at the time of the termination fact finding hearing in 2019 and
after Father’s one-year absence in North Dakota in 2018. Father was unable to
participate in visits with C.A. at his home due to the nature of his housing.
Father testified that he was still looking for permanent housing and needed
assistance doing so.
[26] Moreover, Father has not seen the Children since 2016, and it has been four
years since the Children were placed with Father. Father did complete
domestic violence related services; however, Father stopped participating in
other services, moved out of state, and failed to provide reliable contact
information to DCS. Father’s struggle with substance abuse is ongoing, and
Father committed another substance-related offense mere months before the
termination fact finding hearing.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 14 of 18
[27] Based on the foregoing, we cannot say the trial court’s conclusion that the
conditions that led to the Child’s removal will not be remedied was clearly
erroneous.8
B. Children’s Best Interests
[28] In determining what is in the best interests of a child, the trial court is required
to look at the totality of the evidence. See In re A.B., 887 N.E.2d 158, 167-68
(Ind. Ct. App. 2008). In doing so, the trial court must subordinate the interests
of the parents to those of the child involved. Id. at 168. Termination of a
parent-child relationship is proper where the child’s emotional and physical
development is threatened. In re K.T.K., 989 N.E.2d at 1235. A trial court
need not wait until a child is irreversibly harmed such that his or her physical,
mental, and social development is permanently impaired before terminating the
parent-child relationship. Id. Additionally, a child’s need for permanency is a
“central consideration” in determining the best interests of a child. Id.
[29] The trial court found:
e. As stated above, it is reasonably probable that the conditions
that led to the removal and retention of the children from
Father’s custody will not be remedied, and there is reasonable
probability that the continuation of the parent-child relationship
poses a threat to the well-being of the children. Additionally,
Father did not successfully complete the court-ordered services,
and thus has not demonstrated an ability to effectively use those
8
Accordingly, because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not
address whether continuation of the parent-child relationship poses a threat to the Children.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 15 of 18
services. Also, both the FCM and the GAL believe that
termination of Father’s parental rights and the subsequent
adoption of the children is in the children’s best interests.
f. The Court finds that DCS has shown by clear and convincing
evidence that termination of the parent-child relationship is in the
best interests of the children.
Appellant’s App. Vol. II p. 36.
[30] At the termination fact finding hearing, FCM Lewis testified that the Children’s
behaviors of aggression and defiance have improved as the Children have
progressed through services. In 2016, during Father’s unsupervised visitation,
the Children had access to and viewed pornography. Father also had substance
abuse issues, issues following the law, and was involved in multiple shootings
during these proceedings. Father’s issues have significantly impacted the
Children.
[31] The testimony at the termination of parental rights fact finding hearing revealed
that Father is unable to provide stability for the Children. Father disappeared
for significant portions of time, and DCS was unable to contact Father.
Moreover, DCS became involved with the family in 2015; yet, at the time of the
2019 termination fact finding hearing, Father had still not secured suitable
housing for the Children.
[32] Father’s argument that he always acts appropriately with the Children and has
the potential to be a strong parent is a request for us to reweigh evidence, which
we cannot do. Father’s interactions with the Children are not the only
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 16 of 18
consideration in whether termination is in the Children’s best interests. Father
had not seen the Children since 2016, and Father’s lack of stability and inability
to provide for the Children over the four years of the pending matter
demonstrate that Father cannot provide the Children with the permanency and
stability they need.
[33] Based on the evidence presented, we cannot say the trial court’s conclusion that
termination of parental rights is in the best interests of the Children is clearly
erroneous.
C. Satisfactory Plan
[34] We next address the evidence regarding the plan for the Children. “DCS must
provide sufficient evidence there is a satisfactory plan for the care and treatment
of the child.” In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013) (citing Ind.
Code § 31-35-2-4(b)(1)(D)), reh’g denied. The plan “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.” Id. (quotations omitted).
[35] FCM Downer testified that DCS’s plan for the Children is adoption and that
the current foster father is considering adoption. Similarly, GAL Box testified
that the foster father is considering adoption and that she supports the foster
father’s adoption of the Children. Sufficient evidence exists to support the
finding that the plan is adoption, and this alone is sufficient to meet the
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 17 of 18
requirement that DCS has a satisfactory plan. 9 See In re J.C., 994 N.E.2d at 290.
We, therefore, cannot find that the trial court’s conclusion is clearly erroneous.
Conclusion
[36] The evidence is sufficient to support the termination of Father’s parental rights.
We affirm.
[37] Affirmed.
Riley, J., and Mathias, J., concur.
9
Father’s argument that, because the foster father has not confirmed he will adopt the Children, we should
leave the door open for Father to parent the Children is a request for us to reweigh evidence, which we
cannot do.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2298 | April 16, 2020 Page 18 of 18