In the Matter of the Involuntary Termination of the Parent-Child Relationship of: H.O. (Minor Child) and T.O. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 31 2019, 9:11 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Talisha R. Griffin Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Frances H. Barrow
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary December 31, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 19A-JT-1681
H.O. (Minor Child) Appeal from the Marion Superior
Court
and
The Honorable Marilyn A. Moores,
T.O. (Father), Judge
Appellant-Respondent, The Honorable Scott B. Stowers,
Magistrate
v. Trial Court Cause No.
49D09-1812-JT-1436
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Bailey, Judge.
Case Summary
[1] T.O. (“Father”) appeals the termination of his parental rights to H.O.
(“Child”), upon the petition of the Marion County Department of Child
Services (“the DCS”). Father presents a single, consolidated issue for review:
whether the DCS established, by clear and convincing evidence, the requisite
statutory elements to support the termination decision. We affirm.
Facts and Procedural History
[2] Child was born in July of 2008. In December of 2016, Child was in the
physical custody of D.C. (“Mother”) and Father was incarcerated.1 At that
time, the DCS alleged Child to be a Child in Need of Services (“CHINS”) and
entered into an informal adjustment with Mother. Mother did not comply with
the requirements of the informal adjustment, and Child was placed in the care
of Father’s brother (“Uncle”) and his wife (“Aunt”). Child had previously lived
with Uncle and Aunt for a year in which both parents were incarcerated.
1
In 2009, Father had been convicted of battery causing serious bodily injury to a person less than 14 years of
age. Father’s testimony did not clarify whether or not his incarceration in 2016 was related to the battery
conviction.
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[3] On February 7, 2017, Child was adjudicated a CHINS. Father was ordered to
participate in a parenting program called Father Engagement. Father was
released from incarceration in April of 2017 and participated in some services,
including visitation. However, he was arrested on multiple occasions in 2018,
and charged with resisting law enforcement, possession of marijuana,
intimidation, battery, and criminal recklessness with a deadly weapon. His last
visit with Child was in October of 2018. On December 7, 2018, Father was
charged with battery resulting in bodily injury to a pregnant woman, Father’s
girlfriend.
[4] On December 14, 2018, the juvenile court ordered that the permanency plan be
changed to a plan for adoption. Mother consented to Child’s adoption by Aunt
and Uncle. On January 7, 2019, the DCS filed a petition to terminate Father’s
parental rights to Child. On March 6, 2019, Father pled guilty to battery and
received a three-year sentence, with two years to be served in work release and
one year on probation.
[5] A hearing on the termination petition was conducted on May 14, 2019. At that
time, Father was again incarcerated, upon an allegation that he had violated a
term of his work release. He was also subject to a no-contact order for the
protection of Aunt and a no-contact order for the protection of his former
girlfriend and her mother. At the hearing, service providers testified that Father
had made some reunification efforts, such as attaining employment, but was
unable to complete services or provide Child a stable home due to his chronic
incarceration. The Guardian ad Litem (“GAL”) and family case managers
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opined that termination of the parent-child relationship was in Child’s best
interests.
[6] On June 3, 2019, the trial court issued its order terminating Father’s parental
rights. He now appeals.
Discussion and Decision
Standard of Review – Sufficiency of the Evidence
[7] When we review whether the termination of parental rights is appropriate, we
will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d
1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable
inferences that are most favorable to the judgment. Id. In so doing, we give
“due regard” to the trial court’s unique opportunity to judge the credibility of
the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010) (citing Indiana
Trial Rule 52(A)). We will set aside the trial court’s judgment only if it is
clearly erroneous. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229
(Ind. 2013). In order to determine whether a judgment terminating parental
rights is clearly erroneous, we review the trial court’s judgment to determine
whether the evidence clearly and convincingly supports the findings and the
findings clearly and convincingly support the judgment. I.A., 934 N.E.2d at
1132.
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Requirements for Involuntary Termination of Parental Rights
[8] “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re
Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are
of a constitutional dimension, the law provides for the termination of those
rights when the parents are unable or unwilling to meet their parental
responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143,
147 (Ind. 2005). The State is required to prove that termination is appropriate
by a showing of clear and convincing evidence, a higher burden than
establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.
[9] Indiana Code Section 31-35-2-4(b)(2) sets out the elements that the DCS must
allege and prove by clear and convincing evidence to terminate a parent-child
relationship:
(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;
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(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
(D) that there is a satisfactory plan for the care and treatment of
the child.
[10] Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and
therefore the court need only to find that one of the three requirements of
subsection (b)(2)(B) was established by clear and convincing evidence. See In re
L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).
Analysis
[11] According to Father, the DCS failed to present clear and convincing evidence
of a reasonable probability that he would fail to remedy the conditions that led
to Child’s removal, that continuation of the parent-child relationship poses a
threat to Child, and that termination of parental rights is in Child’s best
interests.
[12] As to failure to remedy conditions, we employ a “two-step analysis.” In re
E.M., 4 N.E.3d 636, 643 (Ind. 2014). First, we identify the conditions that led
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to removal; and second, we must determine whether there is a reasonable
probability that those conditions will not be remedied. Id. In the second step,
the trial court must judge parental fitness as of the time of the termination
hearing, taking into consideration the evidence of changed conditions. Id.
(citing Bester, 839 N.E.2d at 152). The trial court is entrusted with balancing a
parent’s recent improvements against habitual patterns of conduct. Id. The
trial court 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.
[13] Habitual conduct may include parents’ prior criminal history, drug and alcohol
abuse, history of neglect, failure to provide support, and a lack of adequate
housing and employment. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,
1157 (Ind. Ct. App. 2013), trans. denied. The trial court may also consider the
services offered to the parent by DCS and the parent’s response to those services
as evidence of whether conditions will be remedied.
[14] The trial court’s order provides in relevant part:
There is a reasonable probability that the conditions that resulted
in the child’s removal and continued placement outside of the
home will not be remedied by her father. [Father] has not made
meaningful or sustainable progress toward reunification. He
continues to commit illegal acts which make him unavailable to
provide permanency and [to] parent. The child has been out of
[Father]’s custody since December 2016 and he has never
progressed to unsupervised parenting time.
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Appealed Order at 2.
[15] Child was removed from Mother’s custody in 2016; at that time, Father could
not provide Child with a home due to his incarceration. He was released from
prison in April of 2017. Cyclically, Father obtained employment and housing,
but lost both upon his subsequent incarceration. When Father was in the
Marion County Jail, he could not visit Child nor could he actively participate in
the Father Engagement program.2 Father’s participation in services became
“stagnant.” (Tr. at 47.) Father visited with Child at the home of Aunt and
Uncle but lost that privilege after he struck Aunt with a rock and she obtained a
no-contact order. Father was unable to maintain independent housing after he
pled guilty to battering his pregnant girlfriend and was placed in work release.
[16] At the hearing, Father testified and acknowledged that he had pending criminal
charges. He hoped for dismissal of most of the charges and for his return to
work release. Even so, Father could not house Child in work release. Indeed,
he admitted that he was unable to care for Child at the present time. The
evidence clearly supports the finding that the conditions leading to removal
were unlikely to be remedied. Because Indiana Code Section 31-35-2-4(b)(2)(B)
is written in the disjunctive, we need not address Father’s contention that there
was insufficient evidence of his posing a threat to Child.
2
There was testimony that Father maintained contact with his service provider, but sessions could not occur
in the jail.
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[17] Father also contends that the DCS did not present clear and convincing
evidence that termination is in Child’s best interests. In determining what is in
a child’s best interests, the court must look to the totality of the evidence. In re
A.D.S., 987 N.E.2d at 1158. We have previously held that recommendations by
the case manager and CASA to terminate parental rights, in addition to
evidence that the conditions resulting in removal will not be remedied, is
sufficient to show by clear and convincing evidence that termination is in the
child’s best interests. Id. at 1158-59.
[18] In addition to evidence of Father’s circumstances and response to services, the
DCS presented evidence relative to Child’s placement. There was testimony
that Child had lived with Aunt and Uncle for several years and was bonded
with them and their children; she wished to continue living with them; she
performed well academically and was in extra-curricular activities. Child’s
GAL and family case manager opined that termination of Father’s parental
rights was in Child’s best interests. Finally, Father testified that his brother’s
home was an appropriate place for Child. Father’s argument is not a true claim
of insufficient evidence. He simply requested that the court extend the relative
placement for two years more years while he was incarcerated or in work
release, while maintaining Father’s legal relationship to Child. The trial court
was not obliged to do so. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App.
1989) (holding that, where parents had “failed to correct their behavior for
years,” the trial court could not be expected to “place [a child] on a shelf” until
parents were able to care for the child).
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Conclusion
[19] The DCS established by clear and convincing evidence the requisite elements to
support the termination of parental rights.
[20] Affirmed.
Kirsch, J., and Mathias, J., concur.
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