in-the-matter-of-the-termination-of-the-parent-child-relationship-of ( 2015 )

MEMORANDUM DECISION
Mar 05 2015, 10:11 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Cory A. Spreen Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 5, 2015
of the Parent-Child Relationship Court of Appeals Cause No.
of, 02A04-1407-JT-348
Appeal from the Allen Superior
A.R.B., & A.K.B. (Children), Court
Cause No. 02D08-1403-JT-19,
02D08-1403-JT-20
and,
The Honorable Charles F. Pratt,
Judge; The Honorable Thomas P.
J.B. (Father), Boyer, Magistrate
Appellant-Respondent,
v.
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The Indiana Department of Child
Services,
Appellee-Petitioner.
Barnes, Judge.
Case Summary
[1] J.B. (“Father”) appeals the termination of his parent-child relationship with
A.R.B. and A.K.B. We affirm.
Issue
[2] Father raises one issue, which we restate as whether there is sufficient evidence
to support the termination of his parental rights.
Facts
[3] A.R.B. was born in 2009, and A.K.B. was born in 2012. When A.K.B. was
born, Father was married to the children’s mother, S.B. (“Mother”). In August
2012, Mother and Father were arrested for several drug-related offenses alleged
to have occurred in the home they shared with the children, and the children
were removed from the home by the Department of Child Services (“DCS”).
The children were determined to be children in need of services and, on March
7, 2014, DCS filed a petition to terminate Mother’s and Father’s parental rights.
On March 13, 2014, Mother voluntarily consented to the termination of her
parental rights.
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[4] Father had no contact with the children after he was arrested, and he remained
incarcerated while the criminal charges were pending. In February 2013,
Father was convicted of Class B felony dealing in methamphetamine and Class
C felony neglect of a dependent after pleading guilty, and several charges were
dismissed.
[5] A termination hearing was held in May 2014 and, following the hearing, the
trial court issued an order terminating Father’s parental rights. The trial court
reasoned in part:
The Court finds by clear and convincing evidence that there is a
reasonable probability that the conditions resulting in [the children’s]
removal from [Father] will not be remedied. [Father] has two (2)
separate felony convictions for drug offenses. [Father] lost 180 days of
good time credit towards his sentence during his current incarceration
with the Indiana Department of Corrections. At the time of the Fact
Finding Hearing on May 29, 2014, [Father’s] anticipated release date
from the Indiana Department of Corrections was July 2, 2015,[1] and
he had not completed any programs that provide for a reduction in his
executed sentence. After his release from the Plainfield Correction
Facility [Father] will still be subject to serving 3 years of his sentence in
Allen County Community Corrections and 4 years of active adult
probation. No Contact Orders entered in Allen Superior Court . . .
prohibit contact between [Father] and [the children] until his probation
is completed. There is no evidence that [Father] has completed any
programs specifically designed to address substance abuse since his
arrest on August 28, 2012. [Father] has provided no financial support
or clothing for [the children] since his arrest on August 28, 2012.
1
The trial court’s order contains two different anticipated release dates—July 2, 2015 and November 12,
2015. Testimony at the termination hearing, including Father’s testimony, indicated an anticipated release
date of November 2015.
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[Father] has not completed his GED and has no housing plans after
his release from the Plainfield Correctional Facility.
App. p. 33. Father now appeals.
Analysis
[6] Father argues that there is insufficient evidence to support the termination of his
parental rights. “When reviewing the termination of parental rights, we do not
reweigh the evidence or judge witness credibility.” In re I.A., 934 N.E.2d 1127,
1132 (Ind. 2010). We consider only the evidence and reasonable inferences
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 Indiana Trial Rule 52(A)). Where a trial court enters findings of fact
and conclusions thereon, as the trial court did here, we apply a two-tiered
standard of review. Id. “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,
which occurs if the findings do not support the trial court’s conclusions or the
conclusions do not support the judgment. Id.[7] A petition to terminate a 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
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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
(D) that there is a satisfactory plan for the care and treatment of the
child.
Ind. Code § 31-35-2-4(b)(2). DCS has the burden of proving these allegations
by clear and convincing evidence. I.A., 934 N.E.2d at 1133.
[8] Father claims there is insufficient evidence that the conditions resulting in the
children’s removal from the home will not be remedied. In making this
determination, the trial court judges a parent’s fitness at the time of the
termination proceeding, balancing a parent’s recent improvements against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. In re E.M., 4 N.E.3d 636, 643 (Ind.
2014). This balancing is entrusted to the trial court. Id. “Requiring trial courts
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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.[9] Father acknowledges that he has a previous drug-related conviction in addition
to his most recent methamphetamine-related conviction, which led to the
children’s removal, and that he has not completed any substance abuse
programs since his August 2012 arrest. He claims that the trial court failed to
consider evidence that he has not used drugs since his arrest. It is clear,
however, that the weight given to Father’s sobriety while incarcerated was a
matter within the trial court’s discretion. See K.T.K. v. Indiana Dep’t of Child
Servs., Dearborn Cnty. Office, 989 N.E.2d 1225, 1234 (Ind. 2013) (concluding that
it was within the trial court’s discretion to consider mother’s sobriety in prison
“where she would have not had access to any illegal substances, nor be
subjected to the type of stressors—namely the responsibility of maintaining a
household and raising three young and active children—that would normally
trigger a desire to pursue an escape from the pressures of everyday life that
drugs often provide”).
[10] Father also takes issue with the trial court’s assessment of his educational credit
time. Father contends that some of his good time credit, which had previously
been taken away when Father was found guilty of a possessing a cellphone in
jail, had already been restored. Be that as it may, the trial court’s finding
related to the completion of “programs that provide for a reduction in his
executed sentence[,]” not the restoration of good time credit. App. p. 33.
Although Father completed other programs while incarcerated, was working
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toward completing a literacy program, and intended to get his GED, he had not
in fact completed any programs that resulted in the award of educational credit
time. The evidence supports this finding.
[11] As for Father’s housing plans upon release, Father contends the trial court’s
finding that he had no housing plans was not supported by the evidence. At the
hearing, Father’s correctional case worker testified that, upon his release,
Father “does not having housing. He will be going to a shelter.” Tr. p. 10.
This is consistent with Father’s testimony that he will be residing at a mission if
he has no place else to go and that he hasn’t “really tried to find a place to go
yet.” Id. at 36. This evidence supports the trial court’s finding that Father has
no housing plans upon his release.
[12] Father has not established that the evidence does not support the findings or
that the findings do not support the conclusion that the conditions resulting in
removal would not be remedied. There is sufficient evidence to support the
termination of Father’s parental rights.
Conclusion
[13] The evidence supports the conclusion that the conditions resulting in the
children’s removal would not be remedied. We affirm.
[14] Affirmed.
May, J., and Pyle, J., concur.
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