in-the-matter-of-the-involuntary-termination-of-the-parent-child ( 2014 )

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 Jul 28 2014, 9:32 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
ROBERT J. HENKE
Deputy Attorney General
CHRISTINA D. PACE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE INVOLUNTARY )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF K.S., D.S., and N.S., )
MINOR CHILDREN, AND THEIR )
FATHER S.S., )
)
S.S., )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1312-JT-1051
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
The Honorable Larry Bradley, Magistrate
Cause Nos. 49D09-1211-JT-43374, 49D09-1211-JT-43375, 49D09-1211-JT-43376
July 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Appellant-Respondent S.S. (“Father”) appeals the juvenile court’s order terminating
his parental rights to K.S., D.S., and N.S. (collectively, the “Children”). On May 20, 2010,
the Department of Child Services (“DCS”) filed a petition alleging that the Children were
children in need of services (“CHINS”) and removed the Children from Father’s and K.S.’s
(“Mother”) care. The CHINS petition stated that DCS became involved with the family after
receiving allegations of educational neglect, drug use, domestic violence, physical abuse, and
rape. The petition also alleged that Mother failed to cooperate with the DCS investigation
and refused to allow DCS to assess the Children’s safety. The Children were adjudicated to
be CHINS on November 9, 2010.
DCS filed a petition seeking the termination of Father’s parental rights to the Children
on November 7, 2012. Following a two-day evidentiary hearing, the trial court issued an
order terminating Father’s parental rights to the Children. On appeal, Father contends that
DCS did not provide sufficient evidence to support the termination of his parental rights. We
affirm.
FACTS AND PROCEDURAL HISTORY
Father and Mother were involved in a long-term romantic relationship and are the
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parents of the Children.1 K.S. was born on February 19, 2005, D.S. was born on July 14,
2006, and N.S. was born on December 30, 2007. DCS filed a petition on May 20, 2010,
alleging that the Children were CHINS. In this petition, DCS alleged that Father and Mother
failed to provide the Children with a safe and appropriate living environment. Specifically,
DCS stated that it had received eight reports of abuse and neglect concerning the family since
February of 2010, including allegations of educational neglect, drug use, domestic violence,
physical abuse, and rape. DCS also stated that it experienced a lack of cooperation from
Mother with the DCS investigation and a refusal by Mother to allow DCS to assess the
Children’s safety. DCS also noted the substantial history of domestic violence between
Father and Mother. Also on May 20, 2010, the Children were removed from Father’s and
Mother’s care and have not been returned to Father’s care since that date.
On November 9, 2010, the juvenile court adjudicated the Children to be CHINS. The
juvenile court issued a dispositional order and parental participation decree on January 4,
2011, in which it ordered Father to participate in certain services. Specifically, Father was
ordered to (1) remain in contact with the DCS family case manager; (2) obtain and maintain
suitable housing; (3) secure and maintain a legal and stable source of income; (4) formulate
and put in place a protection plan which protects the children from further physical and/or
sexual abuse; (5) establish paternity of the Children; (6) notify DCS of any changes in
address, employment, telephone number, and household composition; (7) participate in and
successfully complete home-based counseling; (8) complete a parenting assessment and
1
The termination of Mother’s parental rights to the Children is not at issue in this appeal. In addition,
Father and Mother are also the parents of two other children. Their parental rights to these other children are
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successfully complete all recommendations developed as a result of the assessment; (9)
complete a psychological evaluation; (10) participate in and successfully complete a drug and
alcohol assessment and successfully complete all recommendations developed as a result of
the assessment; (11) participate in a program addressing issues of domestic violence; and
(12) visit with the Children on a consistent, regular basis. Father did not complete the
services ordered by the juvenile court. On November 7, 2012, DCS filed a petition seeking
the termination of Father’s parental rights to the Children.
On November 12 and 13, 2013, the juvenile court conducted an evidentiary
termination hearing at which Father appeared telephonically and was represented by counsel.
During the termination hearing, DCS introduced evidence relating to continued concerns
regarding Father’s inability or refusal to properly care for the Children and his failure to
participate in or benefit from the services offered by DCS. Specifically, DCS presented
evidence demonstrating a long history of domestic violence between Father and Mother; that
Father, by the age of thirty-three, had amassed a relatively lengthy criminal history; that
Father had failed to complete the services ordered by the juvenile court; and that Father had
shown an apparent lack of interest in caring for or visiting with the Children, whom he had
not seen since February of 2011. DCS also introduced evidence indicating that the
termination of Father’s parental rights was in the Children’s best interests and that its plan for
the permanent care and treatment of the Children was adoption. Father acknowledged that, at
the time of the evidentiary hearing, he was not in a position to provide adequate care and
supervision for the Children. However, he presented evidence which he claimed
not at issue in the instant appeal.
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demonstrated that he was beginning to make progress and, as such, should be given more
time before his parental rights were terminated. Following the conclusion of the termination
hearing, the juvenile court issued an order terminating Father’s parental rights to the
Children. Father now appeals.
DISCUSSION AND DECISION
The Fourteenth Amendment to the United States Constitution protects the traditional
right of a parent to establish a home and raise his children. Bester v. Lake Cnty. Office of
Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further, we acknowledge that the
parent-child relationship is “one of the most valued relationships of our culture.” Id.
However, although parental rights are of a constitutional dimension, the law allows for the
termination of those rights when a parent is unable or unwilling to meet his responsibility as a
parent. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,
parental rights are not absolute and must be subordinated to the children’s interests in
determining the appropriate disposition of a petition to terminate the parent-child
relationship. Id.
The purpose of terminating parental rights is not to punish the parent but to protect the
children. Id. Termination of parental rights is proper where the children’s emotional and
physical development is threatened. Id. The juvenile court need not wait until the children
are irreversibly harmed such that their physical, mental, and social development is
permanently impaired before terminating the parent-child relationship. Id.
Father contends that the evidence presented at the evidentiary hearing was insufficient
to support the juvenile court’s order terminating his parental rights. In reviewing termination
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proceedings on appeal, this court will not reweigh the evidence or assess the credibility of the
witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879
(Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile court’s
decision and reasonable inferences drawn therefrom. Id. Where, as here, the juvenile court
includes findings of fact and conclusions thereon in its order terminating parental rights, our
standard of review is two-tiered. Id. First, we must determine whether the evidence supports
the findings, and, second, whether the findings support the legal conclusions. Id.
In deference to the juvenile court’s unique position to assess the evidence, we set
aside the juvenile court’s findings and judgment terminating a parent-child relationship only
if they are clearly erroneous. Id. A finding of fact is clearly erroneous when there are no
facts or inferences drawn therefrom to support it. Id. A judgment is clearly erroneous only if
the legal conclusions made by the juvenile court are not supported by its findings of fact, or
the conclusions do not support the judgment. Id.
In order to involuntarily terminate a parent’s parental rights, DCS must establish by
clear and convincing evidence that:
(A) one (1) of the following exists:
(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; or
(iii) the child has been removed from the parent and has been under the
supervision of a county office of family and children 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
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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) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2) (2011). Father does not dispute that DCS presented sufficient
evidence to support the first and fourth elements set forth in Indiana Code section 31-35-2-
4(b). Father, however, does claim that DCS failed to establish the second and third elements
that are required to be proven before a court can order the involuntary termination of a
parent’s parental rights. Specifically, Father argues that DCS failed to establish either that
(1) there is a reasonable probability that the conditions that resulted in the Children’s removal
from or the reasons for their continued placement outside of his home will not be remedied,
or (2) the Children have been adjudicated to be CHINS on two separate occasions. Father
also argues that DCS failed to establish that termination of his parental rights is in the
Children’s best interests.
I. Whether DCS Presented Sufficient Evidence to Prove the Second Element
That Is Required to Be Proven Before a Court May Order the Involuntary
Termination of One’s Parental Rights
On appeal, Father argues that DCS failed to establish by clear and convincing
evidence that (1) the conditions resulting in the Children’s removal from and continued
placement outside his care will not be remedied, or (2) the Children had been adjudicated
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CHINS on two separate occasions. Father, however, does not challenge the juvenile court’s
determination that DCS established by clear and convincing evidence that the continuation of
the parent-child relationship poses a threat to the Children.
It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written in the
disjunctive, the juvenile court need only find either that (1) the conditions resulting in
removal from or continued placement outside the parent’s home will not be remedied, (2) the
continuation of the parent-child relationship poses a threat to the child, or (3) the Children
have been adjudicated CHINS on two separate occasions. See In re C.C., 788 N.E.2d 847,
854 (Ind. Ct. App. 2003), trans. denied. Therefore, where, as here, the juvenile court
concludes that there is a reasonable probability that the continuation of the parent-child
relationship poses a threat to the well-being of the Children, and there is sufficient evidence
in the record supporting the juvenile court’s conclusion, it is not necessary for DCS to prove,
or for the juvenile court to find, either of the other two factors listed in Indiana Code section
31-34-2-4(b)(2)(B). See generally In re S.P.H., 806 N.E.2d at 882 (providing that because
Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS need only prove
and the juvenile court need only find that one of the factors listed in that sub-section is true).
In determining whether the continuation of a parental relationship poses a threat to a
child’s well-being, a juvenile court should judge a parent’s fitness to care for his child as of
the time of the termination proceeding, taking into consideration evidence of changed
conditions. Bester, 839 N.E.2d at 152. However, the court must also consider a parent’s
habitual pattern of conduct to determine whether there is a substantial probability of future
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neglect or deprivation. Id. Again, a court need not wait until the child is irreversibly harmed
such that his physical, mental, and social development is permanently impaired before
terminating the parent-child relationship. See In re T.F., 743 N.E.2d at 773. Moreover, a
juvenile court “‘can reasonably consider the services offered by [DCS] to the parent and the
parent’s response to those services.’” McBride v. Monroe Cnty. Office of Family & Children,
798 N.E.2d 185, 199 (Ind. Ct. App. 2003) (quoting In re A.C.C., 682 N.E.2d 542, 544 (Ind.
Ct. App. 1997)).
Here, the juvenile court determined that the continuation of the parent-child
relationship posed a threat to the Children’s well-being. In making this determination, the
juvenile court noted that Father is unavailable to parent and, given his lack of participation in
services, has not demonstrated a willingness to parent. In support of its determination, the
juvenile court found as follows:
7. [Father] admitted to a history of domestic violence, a no contact order
with [Mother] and the children, and educational neglect.
****
24. There is a long history of domestic violence between [Mother] and
[Father].…
35. When not incarcerated, [Mother] and [Father] lived together at times
and [Father] transported [Mother] to visits. [Mother]’s therapist described her
running hot and cold toward [Father] and wanting to co-parent.
36. On July 26, 2011, the [CHINS] Court changed the children’s
permanency plan from reunification to adoption finding that [Father] had not
been visiting the children and was not participating in services.…
38. [Father] will be incarcerated for the next approximate ten months on a
Class B Felony conviction of Dealing in Cocaine or Narcotics.
39. [Father] would be on work release but escaped in January of 2013, and
was re-incarcerated in March of 2013.
40. [Father] is age thirty-three and has eleven convictions since he was an
adult, including three convictions for Domestic Violence where [Mother] was
involved.
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41. [Father] was referred services of drug and alcohol and domestic
violence evaluations on two occasions but failed to participate.
42. [Father] completed a parenting assessment. He may or may not have
taken classes while incarcerated.
43. [Father] completed one half of a psychological evaluation and was
discharged from home-based services more than once.
44. [Father] believes the children should be with their mother. He has not
seen the children since February of 2011.
45. At the beginning of the [CHINS] case, the children had significant
behavior problems, including aggression and acting out. They lacked social
skills.
46. The children are in therapy and are now observed as having stabilized.
47. [D.S.] and [N.S.] are placed together in a foster home which has
become pre-adoptive.
48. [K.S.] was placed in a separate therapeutic foster home because of
concerns of her acting out sexually. The home became a good fit for [K.S.]
and is now pre-adoptive.
49. The children have resided in their respective homes since July of 2012
and appear happy, comfortable and bonded.
Appellant’s App. pp. 60-63.2
In addition to evidence supporting the above-stated findings, the juvenile court heard
evidence indicating that but for an approximate five-year period from 2004 to 2009, Father
had “been in and out of jail” his entire adult life. Tr. p. 491. Father admitted that at the time
of the evidentiary hearing, he could not provide for the Children’s needs, could not provide
adequate housing or supervision for the Children, or make sure the Children are safe. The
juvenile court also heard evidence that the Children had previously demonstrated significant
behavior problems; that these behavior problems were impacted by contact with Mother and
Father; and that after visitation with Mother and Father stopped, the Children’s behaviors
stabilized and improved. Further, the juvenile court heard evidence that in 2012, Father
informed Family Case Manager Shalonda Lyons (“Case Manager Lyons”) that he did not
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want to visit the Children because he had a warrant out for his arrest. Father also indicated to
Case Manager Lyons that he did not want to participate in any services. When considered as
a whole, we conclude that the evidence is sufficient to demonstrate a reasonable probability
that the continuation of Father’s parental relationship would pose a threat to the Children’s
well-being.
Moreover, it was within the province of the juvenile court, as the finder of fact, to
minimize any contrary evidence of changed conditions in light of its determination that the
continuation of Father’s parent-child relationship with the Children was a threat to the
Children’s well-being. It is well-established that the juvenile court, acting as a trier of fact,
was not required to believe or assess the same weight to the testimony as Father. See
Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621 N.E.2d 308,
320 (Ind. 1993); Nelson v. State, 525 N.E.2d 296, 297 (Ind. 1988); A.S.C. Corp. v. First Nat’l
Bank of Elwood, 241 Ind. 19, 25, 167 N.E.2d 460, 463 (1960); Haynes v. Brown, 120 Ind.
App. 184, 189, 88 N.E.2d 795, 797 (1949), trans. denied. Father’s claim effectively amounts
to an invitation for this court to reassess witness credibility and reweigh the evidence, which,
again, we will not do. See In re S.P.H., 806 N.E.2d at 879.
II. Whether DCS Presented Sufficient Evidence to Prove the Third Element
That Is Required to Be Proven Before a Court May Order the Involuntary
Termination of One’s Parental Rights
Next, we address Father’s claim that DCS failed to prove by clear and convincing
evidence that termination of his parental rights was in the Children’s best interests. We are
mindful that in determining what is in the best interests of a child, the juvenile court is
2
We note that Father does not challenge any of the above-stated findings made by the juvenile court.
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required to look beyond the factors identified by DCS and look to the totality of the evidence.
McBride, 798 N.E.2d at 203. In doing so, the juvenile court must subordinate the interests of
the parent to those of the child involved. Id. Furthermore, this court has previously
determined that the testimony of the case worker or Guardian Ad Litem (“GAL”) regarding
the child’s need for permanency supports a finding that termination is in the child’s best
interests. Id.; see also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.
Here, the testimony establishes that the Children have a need for permanency and
stability and that the termination of Father’s parental rights would serve their best interests.
Both Family Case Manager Shannon Taylor and the Children’s GAL, Nancy Englert,
testified that they believed that the termination of Father’s parental rights was in the
Children’s best interests. In stating this belief, GAL Englert testified that she believed that a
sense of permanency and stability was vital to the Children’s well-being.
Regarding the Children’s need for permanency and stability, GAL Englert testified
that K.S. had been placed in seven or eight placements during the pendency of the underlying
CHINS action. GAL Englert further testified that D.S. and N.S. had also been placed in
numerous placements during the pendency of the underlying CHINS action. GAL Englert
indicated that the Children have bonded with their current foster parents. GAL Englert
further indicated that the Children have made statements suggesting that they feel safe in
their current homes, want to be adopted by their current foster parents, and do not want to
move again.
GAL Englert testified that Father had failed to engage in any services in a meaningful
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way, did not visit the Children consistently, and had really made no progress in three and a
half years. GAL Englert opined that giving Father more time would be harmful to the
Children. In that regard, GAL Englert testified that:
[A]t some point you look at these little faces and it’s hard to keep going to
them month after month after month and saying well …we still don’t know
what’s going to happen, what do you want me to tell the judge? You know, at
some point it’s just not fair to them.
Tr. pp. 443-44 (ellipsis in original). GAL Englert further testified that:
It’s been three and a half years. And we’ve made no progress really with
[Father] or with [Mother] and it just … it, like I said at the beginning, at what
point do you feel like you’ve been fair, you’ve given people more than …
more than a shot at doing this. And at some point the scales start to balance
and you’ve got more harm coming to the children, you’re not getting anywhere
and really, when I look back on the case, as I said, I regret that we just kept
trying and trying and trying because although we did it with good intentions,
ultimately it kept the kids in the system longer.
Tr. p. 454 (ellipses in original). Case Manager Taylor also testified that she does not believe
that Father should be given more time because Father is currently incarcerated, has had three
years to comply with services but has not done so, and cannot provide for the Children’s
needs.
In addition, the evidence demonstrates that the Children have not returned to Father’s
care since they were removed from his and Mother’s care on May 20, 2010, and Father has
not even seen the Children since February of 2011. Father also acknowledged that he is
presently unable to provide the necessary care and supervision for the Children.
Furthermore, the juvenile court heard evidence that the Children’s serious behavioral issues
have stabilized and improved since their contact with Mother and Father has ceased.
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The juvenile court did not have to wait until the Children were irreversibly harmed
such that their physical, mental, and social development was permanently impaired before
terminating Father’s parental rights. See In re C.M., 675 N.E.2d at 1140. In light of the
testimony of Case Manager Taylor and GAL Englert, considered with Father’s failure to
complete services, seeming lack of interest in caring for or visiting with the Children, and
continued lack of stability, we conclude that the evidence is sufficient to satisfy DCS’s
burden of proving that termination of Father’s parental rights is in the Children’s best
interests. Again, Father’s claim to the contrary merely amounts to an invitation for this court
to reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.
CONCLUSION
Having concluded that the evidence is sufficient to support the juvenile court’s order
terminating Father’s parental rights to the Children, we affirm the judgment of the juvenile
court.
The judgment of the juvenile court is affirmed.
BARNES, J., and BROWN, J., concur.
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