in-the-matter-of-the-termination-of-the-parent-child-relationship-of-st ( 2014 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any May 01 2014, 10:26 am
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:
JULIANNE L. FOX GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
ROBERT J. HENKE
Deputy Attorney General
Indianapolis, Indiana
CHRISTINE REDELMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
)
S.T. (Minor Child), )
)
And )
)
R.M. (Father), )
)
Appellant/Respondent, )
)
vs. ) No. 82A01-1309-JT-396
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES )
)
Appellee/Petitioner. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Brett J. Niemeier, Judge
The Honorable Renee Allen Ferguson, Magistrate
Cause Nos. 82D01-1208-JT-92 & 82D01-1108-JP-541
May 1, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
R.M. (“Father”) appeals the termination of his parental rights to his daughter, S.T.
He challenges authorities’ decision not to place S.T. with his family and argues that there
is insufficient evidence to support the termination order. But Father’s family was not
approved to care for S.T., and Father has a significant and violent criminal history that
has caused him to be incarcerated for the entirety of his daughter’s young life—he has
never met S.T. or shown that he is capable of caring for her. We conclude that there was
sufficient evidence to support the trial court’s decision to terminate the parent-child
relationship. We affirm.
Facts and Procedural History
S.T. was born on February 27, 2011. Hospital employees notified the local
Vanderburgh County Department of Child Services (“VCDCS”) that S.T. tested positive
for THC at birth. S.T.’s mother (“Mother”) entered into an informal adjustment with
VCDCS that required her to submit to random drug screens, but when she tested positive
for methamphetamine in May 2011, S.T. was removed from her care and temporarily
placed in foster care. VCDCS filed a petition alleging that S.T. was a child in need of
services (“CHINS”), and Mother ultimately admitted that S.T. was a CHINS.
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At the time of S.T.’s birth, Mother was married to D.A. Therefore, S.T. was
presumed to be D.A.’s daughter. After being placed in foster care temporarily, S.T. was
placed with D.A. D.A. lives with his fiancée E.P. and their respective children, including
S.T.’s two half siblings. Mother has since consented to S.T.’s adoption by D.A. and E.P.,
and she does not participate in this appeal.
In summer 2011—after S.T. was placed with D.A.—VCDCS learned that Father
might be S.T.’s biological father. In early 2012 DNA testing confirmed that Father is
S.T.’s biological father. But because he was incarcerated, Father was not ordered to
participate in any CHINS-related services.
VCDCS filed a petition to terminate Father’s parental rights in August 2012. The
trial court held three hearings on the petition in 2013 and Father, who was still
incarcerated, participated by phone. At the hearings, those involved in the case expressed
concern about Father’s ability to care for S.T. due to his continued incarceration and
criminal history. Father has four misdemeanor convictions and five felony convictions
for attempted armed robbery, robbery, battery with a deadly weapon, possession of a
controlled substance, and robbery resulting in bodily injury. Father was incarcerated
before S.T.’s birth and his earliest release date is June 2015, though he testified that he
believed he would be released at the end of 2014. Tr. p. 30, 45. Father’s criminal
conduct prevented him from having any relationship with his daughter—Father testified
that he had never met or spoken to S.T. Id. at 44.
Elizabeth Herman, a VCDCS caseworker, testified that Father was not capable of
caring for S.T. because of his “history of violence, as well as substance abuse. He’s
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never maintained employment or housing on his own.” Id. at 75. Herman also testified
that Father had only recently started paying three dollars in child support each week. Id.
Herman recommended terminating Father’s parental rights. Id. at 80. Another
caseworker, Patricia Roedel, also recommended terminating Father’s rights, noting
Father’s violent criminal history and that he would not be released until 2015. Id. at 125.
Roedel also explained that S.T. was bonded to her foster family, including her half-
siblings, and was living in a safe and stable home. Id. at 126.
The court-appointed special advocate (“CASA”) assigned to the case, Debra
Gamache, testified that Father posed a threat to S.T. CASA Gamache explained that
Father’s criminal history included acts of violence and that he had been violent toward
Mother in the past.1 Id. at 194. She also testified that S.T. needed permanency and
stability and that her foster family could offer her those things. Id. CASA Gamache
recommended terminating Father’s parental rights, saying:
[S.T.] has been placed with [her stepfather D.A.] and her half-siblings.
That’s [the] only really [sic] father, and [E.P.’s] the only real mother that
she’s ever known. [She’s] very bonded to the family and her siblings.
She’s always right there with them. . . . [S.T.] needs stability. She needs to
remain with her siblings. And I believe [VCDCS] has an appropriate plan
for that to happen.
Id. CASA Gamache said that D.A. and E.P. planned to adopt S.T. and expressed her
belief that removing S.T. from her current placement would be very detrimental to her.
Id. at 197-98.
Caseworkers explained that Father’s family—specifically his mother and sister—
had not been considered for placement initially because paternity had not been
1
There was no objection to this testimony.
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established and therefore they had no legal relationship to S.T. After paternity was
established, they were not approved for placement because Father’s mother had not been
compliant with VCDCS and she and Father’s sister were not employed. Id. at 82.
Caseworkers had “[w]eighed the pros and cons” and decided not to change S.T.’s
placement because S.T.’s foster family was capable of providing for her and S.T. was
bonded to the family, which included her half-siblings. Id.
Father asked the court not to terminate his parental rights. He testified that he paid
“$70 [or] $75,” in child support since paternity had been established. Id. at 347. When
asked about his plans when released from prison, Father said he would be on parole and
would live with his mother. Id. at 355. Father had not secured a job, but he planned to
work in construction with a certificate he obtained while incarcerated. Id. at 356.
In September 2013 the trial court entered its order with findings terminating
Father’s parental rights. Appellant’s App. p. 26-32.
Father now appeals.
Discussion and Decision
On appeal, Father challenges VCDCS’s refusal to place S.T. with his mother and
sister and argues that there is insufficient evidence to support the termination order. 2
2
In a single paragraph, Father also asserts that his due-process rights were violated by alleged
procedural irregularities in the underlying CHINS and termination proceedings. See Appellant’s Br. p.
15. But Father did not raise any CHINS-related challenges during the termination proceedings, and a
party may not raise an issue for the first time on appeal. McBride v. Monroe Cnty. Office of Family &
Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). Father also offers no legal authority to support this
due-process claim, and therefore he has waived it. See Ind. Appellate Rule 46(A)(8)(a) (“[e]ach
contention must be supported by citations to the authorities, statutes, and the appendix or parts of the
Record on Appeal relied on, in accordance with Rule 22.”); see also In re J.V., 875 N.E.2d 395, 402 (Ind.
Ct. App. 2007) (party waives any issue raised on appeal where the party fails to develop a cogent
argument or provide adequate citation to authority), trans. denied.
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I. S.T.’s Placement
Father first challenges VCDCS’s refusal to place S.T. with his mother and sister,
S.T.’s paternal grandmother and aunt.
Father repeatedly states that his mother and sister were “appropriate parties for
third[-]party custody.”3 But caseworkers said otherwise: at the termination hearing, they
testified that Father’s mother and sister were not considered for placement initially
because paternity had not been established and they had no legal relationship to S.T.
After paternity was established, they were not approved for placement because Father’s
mother had not complied with VCDCS and she and Father’s sister were not employed.
By contrast, S.T.’s foster family was capable of providing for her and S.T. was bonded to
the family, which included her half-siblings.
Father does not dispute the caseworkers’ testimony; instead, he argues that S.T.
should have been placed with his family because they are her biological relatives. But
because the evidence shows that Father’s family was not approved for placement, we find
no error here.
II. Termination of 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., 989
N.E.2d 1225, 1230 (Ind. 2013) (citations omitted). The parent-child relationship is one of
our culture’s most valued relationships. Id. (citation omitted). “And a parent’s interest in
the upbringing of their child is ‘perhaps the oldest of the fundamental liberty interests
3
Father also claims that he gave custody of S.T. to his mother and sister. See Appellant’s Br. p.
13 (“[Father] also gave his mother and sister custody on December 12, 2012.”). But because Father has
never had custody of S.T., he could not have given custody of S.T. to anyone else.
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recognized by th[e] [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65
(2000)). But parental rights are not absolute—“children have an interest in terminating
parental rights that prevent adoption and inhibit establishing secure, stable, long-term,
continuous relationships.” Id. (citations omitted). Thus, a parent’s interests must be
subordinated to a child’s interests when considering a termination petition. Id. (citation
omitted). Parental 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. Id. (citations omitted).
When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Id. at 1229 (citation omitted). Instead,
we consider only the evidence and reasonable inferences that support the judgment. Id.
(citation omitted). “Where a trial court has entered findings of fact and conclusions of
law, we will not set aside the trial court’s findings or judgment unless clearly erroneous.”
Id. (citing Ind. Trial Rule 52(A)). In determining whether the court’s decision to
terminate the parent-child relationship 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.” Id. (citation
omitted).
A petition to terminate parental rights 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.
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(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;
(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 must prove the alleged circumstances by clear and
convincing evidence.” K.T.K., 989 N.E.2d at 1231 (citation omitted). On appeal, Father
appears to challenge the sufficiency of the evidence supporting the trial court’s judgment
as to subsections (B) and (C) of the termination statute.
A. Conditions Remedied
Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore,
VCDCS was required to establish, by clear and convincing evidence, only one of the
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three requirements of subsection (B). Because we find it to be dispositive, we address
only the arguments regarding subsection (B)(i); that is, whether there was a reasonable
probability that the conditions resulting in S.T.’s removal or the reasons for her
placement outside Father’s home would be remedied.
In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step analysis. In re
E.M., 4 N.E.3d 636, ___ (Ind. 2014) (citation omitted). We first identify the conditions
that led to removal or placement outside the home and then determine whether there is a
reasonable probability that those conditions will not be remedied. Id. (quotation
omitted). The second step requires trial courts to judge a parent’s fitness as of the time of
the termination proceeding, taking into consideration evidence of changed conditions,
and balancing any recent improvements against “habitual patterns of conduct to
determine whether there is a substantial probability of future neglect or deprivation.” Id.
(citations omitted). In so doing, trial courts may find “that parents’ past behavior is the
best predictor of their future behavior.” Id.
Here, the trial court concluded that there was a reasonable probability that the
conditions resulting in S.T.’s removal from Father’s care or placement outside his home
would not be remedied. Appellant’s App. p. 28-29. The court expressed concern about
Father’s criminal history, including his four misdemeanor convictions and five felony
convictions for attempted armed robbery, robbery, battery with a deadly weapon,
possession of a controlled substance, and robbery resulting in bodily injury. The court
explained that:
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Father’s history with the criminal-justice system, incarceration during the
[CHINS proceeding] and likelihood of years of more incarceration indicate
that he is unlikely to remedy the reasons for continued placement of [S.T.]
outside his care. Father’s current incarceration is a condition that is
unlikely to be remedied before 2015. Given Father’s criminal history and
history of incarceration, his inability to be available for and supervise [S.T.]
is not likely to be remedied.
Id. at 28-29 (formatting altered).
We cannot conclude that it was clearly erroneous for the trial court to find that
Father’s significant and violent criminal history—which caused him to be incarcerated
for the entirety of S.T.’s young life and prevented him from ever meeting his daughter—
was the best predictor of Father’s future behavior and his inability to provide for S.T. See
E.M., 4 N.E.3d at ___; see also In re I.A., 903 N.E.2d 146, 154 (Ind. Ct. App. 2009)
(courts may consider a parent’s criminal history when determining whether the
conditions that resulted in a child’s removal will not be remedied). Father’s arguments
that he has learned a trade while incarcerated and has paid some child support are
invitations to reweigh the evidence, which we may not do.
The evidence supports the conclusion that there was a reasonable probability that
the conditions resulting in S.T.’s removal or the reasons for her placement outside
Father’s home would not be remedied.
B. S.T.’s Best Interests
Father also contends that termination of his parental rights is not in S.T.’s best
interests.
In determining what is in a child’s best interests, the trial court must look to the
totality of the evidence. See E.M., 4 N.E.3d at ___ (citation omitted). “In so doing, the
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trial court must subordinate the interests of the parent to those of the child.” Id. The
court need not wait until a child is irreversibly harmed before terminating the parent-child
relationship. Id. “Moreover, we have previously held that the recommendations of both
the case manager and child advocate 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 terminating is in the child’s best interests.” Id.
(citation omitted).
The caseworkers assigned to this case recommended terminating Father’s rights,
explaining that Father’s criminal history and continued incarceration made him incapable
of providing a safe and stable home for S.T. They also testified that S.T. is bonded to her
foster family and is well cared for by them. Referencing this testimony, the trial court
found that “there is no guarantee that [Father] . . . will [] be able to bond with [S.T.], seek
legal custody of [S.T.], parent [S.T.] appropriately, and obey the law following release
from his current incarceration.” Appellant’s App. p. 30. The trial court also found that
termination, followed by adoption, was in S.T.’s best interests because she “is in
immediate need of permanency and should not be required to wait for Father to be
released from prison to have such permanency established. It is not in the best interest[s]
of [S.T.] to be raised by the State of Indiana during the remainder of Father’s
incarceration.” Id. Father fails to refute these findings; rather, he again argues that his
mother and sister should “have third party custody without termination of Father’s
rights.” Appellant’s Br. p. 16. We are not persuaded.
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We conclude that the evidence supports the trial court’s determination that
termination of Father’s parental rights is in S.T.’s best interests. See E.M., 4 N.E.3d at
___; see also In re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct. App. 2004) (children’s needs
are too substantial to force them to wait while determining if their parents will be able to
parent them).
Affirmed.
NAJAM. J., and BROWN, J., concur.
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