In the Matter of the Involuntary Termination of the Parent-Child Relationship of: N.C. (Minor Child) and T.C. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be May 29 2018, 10:24 am
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
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary May 29, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 49A02-1712-JT-2846
N.C. (Minor Child) Appeal from the Marion Superior
and Court
The Honorable Marilyn Moores,
T.C. (Father), Judge
Appellant-Respondent, The Honorable Larry Bradley,
Magistrate
v.
Trial Court Cause No.
49D09-1612-JT-1202
The Indiana Department of
Child Services,
Appellee-Petitioner,
and
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Child Advocates, Inc.,
Guardian Ad Litem.
Robb, Judge.
Case Summary and Issue
[1] T.C. (“Father”) appeals the juvenile court’s termination of his parental rights to
N.C. (“Child”), raising two issues for our review which we consolidate and
rephrase as whether the juvenile court’s termination order is supported by clear
and convincing evidence. Concluding the termination order is not clearly
erroneous, we affirm.
Facts and Procedural History
[2] Father and T.B. (“Mother”)1 are the parents of Child, who was born October 7,
2014. Three months later, on January 16, 2015, the Indiana Department of
Child Services (“DCS”) filed a petition alleging Child was a child in need of
services (“CHINS”) because Mother had tested positive for various drugs at
1
Mother’s parental rights were involuntarily terminated prior to Father’s and Mother is not a party to this
appeal.
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Child’s birth. Child remained in the care of Mother and Father until Father
was arrested on March 20, 2015, and charged with dealing in
methamphetamine, a Level 2 felony, possession of methamphetamine, a Level
4 felony, and alleged to be an habitual offender.
[3] At the fact finding hearing on June 23, 2015, Mother and Father stipulated
Child was a CHINS for various reasons, and the juvenile court so adjudicated
Child. After a hearing, the juvenile court entered a dispositional decree
ordering Father to complete a parenting assessment, submit random drug and
alcohol screenings, adhere to the terms of his probation, maintain legal
employment and safe housing, and attend all scheduled visitations with Child.
[4] On October 19, 2015, Father pleaded guilty to dealing in methamphetamine, a
Level 2 felony, and admitted being an habitual offender. Father was sentenced
to eighteen years, eight of which was to be executed at the Indiana Department
of Correction and the remaining ten years suspended to probation. Father’s
criminal record also includes convictions of dealing in cocaine, a Class B
felony; robbery, a Class C felony; and domestic battery, a Class A
misdemeanor. Father’s conviction for domestic battery related to an incident
involving Mother while she was pregnant with Child.
[5] Father remains incarcerated where his earliest possible release date is
September 17, 2020, absent programs that reduce his sentence. However,
Father has completed a ten-month “CLIFF Program,” encompassing classes
addressing cognitive thinking, substance abuse, the 12-step program, and life
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skills, as well as a 90-day program entitled “Inside Out Dads,” focusing on
parenting and healthy relationships with children. Due to the completion of
these programs, along with a job assistance training program which was set to
end in April 2018, Father may be eligible for release as early as December 2018.
[6] On August 28, 2015, Child was placed with P.L. (“Foster Mother”), in whose
care she has remained throughout these proceedings. Child was placed in foster
care along with her half-sister, Mother’s child from a previous relationship,2 and
was less than six months old when she had her last in-person contact with
Father. Child has since been diagnosed with epilepsy and receives medication
along with speech therapy and home-based therapy for behavioral issues. Since
his incarceration, Father’s only contact with Child has been facilitated by Foster
Mother, consisting of one video recording and the gift of several coloring books.
[7] After Father failed to comply with obligations of the dispositional order, DCS
recommended, and the juvenile court agreed, to change Child’s permanency
plan from reunification to adoption. Then, on December 4, 2016, DCS filed its
termination petition and the juvenile court conducted a trial on November 16,
2017. In terminating Father’s parental rights, the juvenile court found, in
relevant part:
23. There is a reasonable probability that the conditions that
resulted in [Child’s] removal and continued placement outside
2
Father has five additional children, with ages ranging from three to twenty-two, all of whom reside with
their mothers.
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the home will not be remedied by [Father]. [Father’s] release
from incarceration was not imminent at the time of trial, and his
past criminal activity gives rise to doubting [sic] whether he can
remain outside of incarceration and available to parent.
24. There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to [Child’s] well-being in
that it would pose as a barrier to obtaining permanency for her
with the only family she knows and with whom she is bonded.
25. [Child’s] Guardian ad Litem recommends adoption due to
her safe and stable long term home, and concerns over the lack of
bond [Child] would have with [Father].
26. Termination of the parent-child relationship is in the best
interests of [Child]. Termination would allow her to be adopted
into a stable and permanent home with her sister, and allow her
needs to continue to be met.
27. There exists a satisfactory plan for the future care and
treatment of [Child], that being adoption into the only home she
knows.
Appealed Order at 2. This appeal ensued.
Discussion and Decision
I. Standard of Review
[8] Reviewing a termination of parental rights, we neither weigh the evidence nor
judge witness credibility and we consider only the evidence and reasonable
inferences most favorable to the judgment. In re C.G., 954 N.E.2d 910, 923
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(Ind. 2011). We apply a two-tiered standard of review in reviewing the juvenile
court’s findings of fact and conclusions thereon: first we determine whether the
evidence supports the findings and then determine whether the findings support
the judgment. Id. “We will set aside the court’s judgment terminating a parent-
child relationship only if it is clearly erroneous. Clear error is that which leaves
us with a definite and firm conviction that a mistake has been made.” S.L. v.
Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123 (Ind. Ct. App. 2013) (citation
omitted).
II. Termination Order
[9] Father contends the juvenile court’s termination order is clearly erroneous.
Specifically, Father claims the State failed to present clear and convincing
evidence to establish: (1) a reasonable probability that the conditions resulting
in Child’s removal will not be remedied; (2) a reasonable probability the
continuation of the parent-child relationship poses a threat to Child’s well-
being; and (3) that termination of Father’s parental rights is in the best interests
of Child. We disagree.
[10] “[T]he relationship between a parent and child is one of the most valued within
our culture.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015).
“However, these parental interests are not absolute and must be subordinated to
the child’s interests in determining the proper disposition of a petition to
terminate parental rights.” Matter of M.B., 666 N.E.2d 73, 76 (Ind. Ct. App.
1996), trans. denied. A termination of parental rights is “an extreme measure
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that is designed to be used as a last resort when all other reasonable efforts have
failed . . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014).
[11] Indiana Code section 31-35-2-4(b)(2) provides the statutory requirements in
order to terminate parental rights. This section provides, in relevant part, that
the State must prove:
(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[; and]
***
(C) that termination is in the best interests of the child . . . .
[12] Notably, the provisions of Indiana Code section 31-35-2-4(b)(2)(B) are written
in the disjunctive, and thus the State need only prove one of those statutory
elements, In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), trans. denied, cert.
denied, 534 U.S. 1161 (2002), but must do so by clear and convincing evidence,
Ind. Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a
juvenile court determines the allegations of the petition are true, then the court
shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
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A. Remedy of Conditions
[13] Father first alleges the juvenile court erred when it concluded there is a
reasonable probability that the conditions resulting in Child’s removal will not
be remedied. The juvenile court concluded:
23. There is a reasonable probability that the conditions that
resulted in [Child’s] removal and continued placement outside
the home will not be remedied by [Father]. [Father’s] release
from incarceration was not imminent at the time of trial, and his
past criminal activity gives rise to doubting [sic] whether he can
remain outside of incarceration and available to parent.
Appealed Order at 2.
[14] In K.T.K. v. Ind. Dep’t. of Child Services, our supreme court explained:
We engage in a two-step analysis to determine whether the
conditions that led to the [Child’s] placement outside the home
will not be remedied. First, we must ascertain what conditions
led to [the] placement and retention in foster care. Second, we
determine whether there is a reasonable probability that those
conditions will not be remedied. In making these decisions, the
trial court must consider a parent’s habitual pattern of conduct to
determine whether there is a substantial probability of future
neglect or deprivation.
989 N.E.2d 1225, 1231 (Ind. 2013) (quotations and citations omitted).
Considerations of the court may properly include “evidence of a parent’s prior
criminal history, drug and alcohol abuse, history of neglect, failure to provide
support, and lack of adequate housing and employment.” A.F. v. Marion Cty.
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Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans.
denied.
[15] Here, Child was initially removed from Father’s care due to his drug-related
arrest and subsequent incarceration. In arguing the State failed to meet its
burden to prove this condition will not be remedied, Father claims the juvenile
court’s finding that Father’s release was “not imminent” is “incorrect,” and that
the court erroneously relied upon his incarceration to terminate his parental
rights. Brief of the Appellant at 15. Although we conclude that Father’s release
was imminent, we nevertheless conclude the juvenile court’s determination was
not clearly erroneous.
[16] Turning first to whether Father’s release was imminent, Father testified that his
“earliest possible release date is September the 17th of 2020,” but due to his
participation in several programs—at least one of which was yet to be
completed—his release could be as soon as “December of 2018 according to my
Abstract of Judgment.” Transcript, Volume II at 120. In In re G.Y., our
supreme court noted that a mother’s release from prison was “imminent” where
she had as few as sixteen months left of incarceration. 904 N.E.2d at 1265.
Here too, we view Father’s release from incarceration in as few as thirteen
months as imminent and we must disregard the juvenile court’s erroneous
finding to the contrary. In re B.J., 879 N.E.2d 7, 19 (Ind. Ct. App. 2008), trans.
denied. However, given Father’s remaining criminal history and the juvenile
court’s accurate findings, such error was harmless. See id. (affirming termination
of parental rights despite erroneous finding based on testimony stricken from
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the record because the error did not “constitute the sole support for any
conclusion of law necessary to sustain the judgment”); Matter of A.C.B., 598
N.E.2d 570, 573 (Ind. Ct. App. 1992) (affirming termination of parental rights
despite erroneous findings because error was “not of such magnitude that it
calls into question the court’s conclusion” that termination was in child’s best
interests).
[17] Contrary to Father’s assertion, his incarceration was not the only factor
underlying the termination petition. Father’s pattern of criminal behavior was
also a primary factor, given his most recent convictions of dealing in
methamphetamine and domestic battery, as well as prior convictions of dealing
in cocaine and robbery. As we oft note, “[i]ndividuals who pursue criminal
activity run the risk of being denied the opportunity to develop positive and
meaningful relationships with their children.” Castro v. State Office of Family &
Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied. Although the
conduct for which Father is currently incarcerated occurred before Child’s birth,
that fact is of little significance considering Father has five older children and
Father’s conviction for domestic battery related to an incident while Mother
was pregnant with Child. In turn, Father emphasizes his testimony that he is
done with his former “lifestyle” and that he wants a new life and opportunity to
parent Child, suggesting that he “has undergone a dramatic transformation.”
Br. of Appellant at 19. This, however, is merely an invitation to reweigh the
evidence and we must decline. In re C.G., 954 N.E.2d at 923. Accordingly, we
conclude that the juvenile court’s finding that Father’s “past criminal activity
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gives rise to doubting [sic] whether [Father] can remain outside of incarceration
and available to parent,” Appealed Order at 2, is supported by the record.
[18] Next, Father argues that “Indiana courts routinely have preserved the parental
rights of an incarcerated offender when the parent will be released within two
years and has shown during his incarceration both desire and effort to change
and improve his parenting,” citing K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d
641 (Ind. 2015), In re J.M., 908 N.E.2d 191 (Ind. 2009); In re G.Y., 904 N.E.2d
1257 (Ind. 2009); and In re M.W., 943 N.E.2d 848 (Ind. Ct. App. 2011), in
support thereof. Br. of Appellant at 20. Although these cases possess
similarities with that now before us, we find them distinguishable for two
primary reasons.
[19] The first, as discussed above, is Father’s criminal history and pattern of
conduct. And the second reason, as the State argues, is the fact that Father has
had little relationship with Child. The record reveals that Father is essentially a
stranger to Child: he was only present for Child’s first six months and has only
maintained minimal contact despite Foster Mother’s willingness to facilitate
their relationship. Cf. K.E., 39 N.E.3d at 644 (noting that Father makes
“nightly phone calls . . . to talk to both of his children”); In re J.M., 908 N.E.2d
at 195 (finding that both mother and father “had a relationship with the child
prior [to] their imprisonment”); In re G.Y., 904 N.E.2d at 1258, 1264 (Ind. 2009)
(child lived with mother for twenty months and the “record shows that since
her incarceration Mother has maintained a consistent, positive relationship with
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[child]”); and In re M.W., 943 N.E.2d at 855 (noting that father “was bonded
with [child]”).
[20] The record also reveals that Father failed to contact DCS or adhere to the terms
of the dispositional order. Aside from the provisions of the dispositional order
which Father’s incarceration prevented him from completing, Father failed to
so much as contact DCS, despite being provided the relevant information.
Therefore, although we acknowledge—and certainly commend—Father’s
participation in several worthwhile programs while incarcerated, considering
Father’s criminal history, the absence of a meaningful relationship with Child,
and our deference to the juvenile court in such matters, we cannot say the
juvenile court clearly erred in concluding the evidence shows a reasonable
probability the conditions resulting in Child’s removal will not be remedied. 3
B. Best Interests
[21] Father also argues that the juvenile court erroneously concluded that
termination of Father’s parental rights is in Child’s best interest. The juvenile
court concluded:
26. Termination of the parent-child relationship is in the best
interests of [Child]. Termination would allow her to be adopted
3
Father also argues the juvenile court erred in finding his continued custody poses a threat to the Child’s
well-being. However, as noted above, Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive
and requires only one element be proven to terminate Father’s parental rights. See In re I.A., 903 N.E.2d 146,
153 (Ind. Ct. App. 2009). Having concluded the evidence is sufficient to show a reasonable probability the
conditions resulting in Child’s removal will not be remedied, we need not consider whether the parent-child
relationship poses a threat to Child’s well-being.
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into a stable and permanent home with her sister, and allow her
needs to continue to be met.
Appealed Order at 2.
[22] In determining the best interests of a child, the juvenile court must “look
beyond the factors identified by the DCS and look to the totality of the
evidence.” In re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App. 2009).
Recommendations of the case manager, court-appointed advocate, and
evidence tending to show that the conditions resulting in removal will not be
remedied is sufficient to show termination is in the child’s best interests by clear
and convincing evidence. See, e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct.
App. 2005), trans. denied. Here, both the family case manager and the guardian
ad litem opined that termination of Father’s parental rights was in Child’s best
interest.
[23] Moreover, permanency is a central consideration in determining the best
interests of a child. In re G.Y., 904 N.E.2d at 1265-66. And, while we are
mindful that the right of parents to raise their child should not be terminated
“solely because there is a better home available for the child,” In re V.A., 51
N.E.3d 1140, 1152 (Ind. 2016), as evidenced by our discussion above, that is
not the case before us. Here, Child has been outside the care of Father for all
but the first six months of her life and it is uncontested that Child is doing
exceedingly well in foster placement. Child is receiving treatment for a serious
health condition and responding positively to both speech and behavioral
therapy. The evidence establishes a significant bond between Child and Foster
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Mother, and Foster Mother is also adopting Child’s half-sister, about whom
Foster Mother testified, “they would be lost without each other.” Tr., Vol. II at
82. Accordingly, the juvenile court did not err in its determination of Child’s
best interests.
Conclusion
[24] Concluding the juvenile court’s decision to terminate Father’s parental rights
was not clearly erroneous, we affirm.
[25] Affirmed.
Najam, J., and Altice, J., concur.
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