in-re-the-involuntary-termination-of-the-parent-child-relationship-of-rl ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Oct 02 2014, 8:56 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:
LAURA M. TAYLOR GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General
ROBERT J. HENKE
Deputy Attorney General
CHRISTINA D. PACE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE INVOLUNTARY TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP OF: )
R.L. (MINOR CHILD) )
)
AND )
)
T.L. (FATHER) )
)
Appellant-Respondent, )
)
vs. ) No. 49A05-1402-JT-81
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION COUNTY SUPERIOR COURT
The Honorable Marilyn Moores, Judge
The Honorable, Larry Bradley Magistrate
Cause No. 49D09-1307-JT-16107
October 2, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
T.L. (Father) appeals the involuntary termination of his parental rights to R.L.
(Child). Father challenge the sufficiency of the evidence supporting the juvenile court’s
judgment.
We affirm.
R.L. was born to fifteen-year-old J.S. (Mother)1 in April 2008. Father, who was
sixteen years old, was not aware of R.L.’s birth until four weeks later. Shortly after her
birth, Child was removed and adjudicated a Child in Need of Services (CHINS). The
CHINS case was closed when D.R. (Guardian) was granted a legal guardianship over
Child. Shortly after the guardianship was entered, Father entered the military and left the
state to go to basic training. Father returned to the Indianapolis area in 2009, but he did
not obtain custody of Child. In December 2010, Father was discharged from the military
for smoking marijuana. In December 2011, Father was convicted of class B felony
attempted arson and class A misdemeanor possession of marijuana. Father received a
suspended sentence and was placed on house arrest. Child remained in Guardian’s care
throughout this period.
On June 8, 2012, the Department of Child Services (DCS) filed a new petition
alleging that Child was a CHINS. The petition alleged that Guardian was deceased and
Child had no guardian available to meet her basic needs. The petition alleged further that
Mother had not seen Child since 2009 and had not demonstrated an ability or willingness
to parent Child, and that Father had recently been released from prison and lacked a
1
The juvenile court also terminated Mother’s parental rights, but Mother does not participate in
this appeal. Accordingly, we discuss only the facts relevant to Father’s appeal.
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stable home for Child. Shortly after the CHINS case was filed, Father violated the terms
of his house arrest by cutting off his electronic monitor. He was arrested on July 6, 2012,
and went to prison for 336 days. Child was ultimately adjudicated a CHINS as to both
Mother and Father and wardship was granted to the DCS. Child was placed with
Guardian’s adult daughter, F.R. (Foster Mother). Father was ordered to contact the DCS
upon his release from incarceration.
The juvenile court held a review hearing on October 2, 2012, at which it noted that
Father’s services had been closed out due to his incarceration. A permanency hearing
was held on July 16, 2013, at which Father appeared with counsel. At the hearing, the
juvenile court changed the permanency plan to adoption, but ordered Father to participate
in random drug screens and home-based services. The juvenile court also authorized
Father to have parenting time with Child.
The DCS filed a petition to terminate Mother’s and Father’s parental rights on July
23, 2013. An evidentiary hearing was held on January 21, 2014. At the hearing, Father
testified that he had moved in with his aunt three weeks before the hearing and that the
home was safe and appropriate for Child. He testified further that upon his release from
prison, he had gotten a job with a cleaning service owned by another aunt. Family Case
Manager (FCM) Shantel Badji testified that she referred Father for random drug screens,
home-based services, and visitation. FCM Badji testified further that Father did not
complete random drug screens or home-based services and that he had not been visiting
Child. FCM Badji also testified that Father had not maintained contact with her or called
to check on Child, and that in the fall of 2013, Father had indicated that he wished to sign
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a consent to Child’s adoption. Father explained that he had stopped participating in
random drug screens because “it seemed like too much of a hassle” and that he had not
visited Child because he felt he needed “to focus on [him]self”, but that he was now
ready to “get back into the situation[.]” Transcript at 36, 32. At the time of the
termination hearing, Father had not seen Child for three months.
At the conclusion of the termination hearing, the juvenile court took the matter
under advisement. On January 27, 2014, the juvenile court issued its order terminating
Mother’s and Father’s parental rights to Child. Father now appeals.
The juvenile court made detailed findings in its order terminating Father’s parental
rights to Child. Where the juvenile court enters specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family
& Children, 839 N.E.2d 143 (Ind. 2005). First, we determine whether the evidence
supports the findings, and second we determine whether the findings support the
judgment. Id. “Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102
(Ind. 1996). A judgment is clearly erroneous only if the findings do not support the
juvenile court’s conclusions or the conclusions do not support the judgment thereon.
Quillen v. Quillen, 671 N.E.2d 98.
We recognize that the traditional right of parents to “establish a home and raise
their children is protected by the Fourteenth Amendment of the United States
Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.
Although parental rights are of constitutional dimension, the law provides for the
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termination of these rights when parents are unable or unwilling to meet their parental
responsibilities. In re R.H., 892 N.E.2d 144 (Ind. Ct. App. 2008). In addition, a juvenile
court must subordinate the interests of the parents to those of the child when evaluating
the circumstances surrounding the termination. In re K.S., 750 N.E.2d 832 (Ind. Ct. App.
2001).
Before an involuntary termination of parental rights may occur in Indiana, the
State is required to allege and prove, among other things:
(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.
Ind. Code Ann. § 31-35-2-4(b)(2)(B) (West, Westlaw current with all 2014 Public Laws
of the 2014 Second Regular Session and Second Regular Technical Session of the 118th
General Assembly). The State is also required to prove that termination of parental rights
is in the best interests of the child and that there is a satisfactory plan for the care and
treatment of the child. I.C. § 31-35-2-4(b)(2)(C), (D). The State’s burden of proof in
termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d
1257, 1260-61 (Ind. 2009) (quoting Ind. Code Ann. § 31-37-14-2 (West, Westlaw current
with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular
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Technical Session of the 118th General Assembly)). If the court finds that the allegations
in a petition described in section 4 of this chapter are true, the court shall terminate the
parent-child relationship. I.C. § 31-35-2-8 (West, Westlaw current with all 2014 Public
Laws of the 2014 Second Regular Session and Second Regular Technical Session of the
118th General Assembly).
Father first challenges juvenile court’s findings as to subsection (b)(2)(B) of the
termination statute cited above. We note DCS needed to establish only one of the three
requirements of subsection (b)(2)(B) by clear and convincing evidence before the
juvenile court could terminate parental rights. See In re L.V.N., 799 N.E.2d 63 (Ind. Ct.
App. 2003). Here, the juvenile court found DCS presented sufficient evidence to satisfy
two of those requirements, namely, that there is a reasonable probability the conditions
resulting in Child’s removal or continued placement outside Father’s care will not be
remedied and that the continuation of the parent-child relationship poses a threat to
Child’s well-being. See I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our inquiry on the
requirements of subsection (b)(2)(B)(i)—that is, whether there was sufficient evidence to
establish a reasonable probability that the conditions resulting in Child’s removal or
continued placement outside Father’s care will not be remedied.2
In making such a determination, a juvenile court must judge a parent’s fitness to
care for his or her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re J.T., 742 N.E.2d 509 (Ind. Ct. App. 2001), trans.
2
Accordingly, we need not address Father’s argument with respect to the juvenile court’s finding that
there was a reasonable probability that continuation of the parent-child relationship poses a threat to
Child’s well-being.
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denied. The court must also evaluate the parent’s habitual patterns of conduct to
determine whether there is a substantial probability of future neglect or deprivation of the
child. Id. In making this determination, courts may consider 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 Cnty. Office of Family &
Children, 762 N.E.2d 1244 (Ind. Ct. App. 2002), trans. denied. The juvenile court may
also consider the parent’s response to the services offered through the DCS. Lang v.
Starke Cnty. Office of Family & Children, 861 N.E.2d 366 (Ind. Ct. App. 2007), trans.
denied. “A pattern of unwillingness to deal with parenting problems and to cooperate
with those providing social services, in conjunction with unchanged conditions, support a
finding that there exists no reasonable probability that the conditions will change.” Id. at
372 (quoting In re L.S., 717 N.E.2d 204, 2010, (Ind. Ct. App. 1999), trans. denied).
Moreover, the failure to exercise visitation demonstrates “a lack of commitment to
complete the actions necessary to preserve [the] parent-child relationship.” Id. (quoting
In re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002)) (alteration in original).
On appeal, Father argues that the conditions resulting in Child’s removal or
continued placement outside the home have been remedied. In support of this assertion,
Father claims that at the time of the termination hearing, he was no longer incarcerated,
had obtained suitable housing, and held a steady job for over eighteen months. With
respect to Father’s housing situation, we note that the juvenile court’s finding that Father
“has a history of unstable housing” is well supported by the evidence. Appellant’s
Appendix at 15. The evidence presented at the termination hearing indicates that Father
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spent approximately one year of the eighteen months between the opening of the CHINS
case and the termination hearing incarcerated. During the time he was not incarcerated,
the evidence indicates that he lived in a homeless shelter, with a cousin, with his sister,
and that he briefly rented a room in a larger home on a week-to-week basis. At the
termination hearing, Father testified that he had been living with his aunt for just three
weeks. Because Father did not provide FCM Badji with his new address, she had not
been able to see the house or confirm that it was safe and appropriate for Child. In light
of Father’s history, it was well within the juvenile court’s discretion to conclude that
Father’s housing instability had not been remedied.
We also note that the evidence does not support Father’s assertion that he held a
steady job for eighteen months. At the termination hearing, Father testified that he had
worked for his aunt’s cleaning service “off and on” for two or three years. Transcript at
29. We also note that Father was released from prison approximately six months before
the termination hearing. It is therefore apparent that he did not hold a steady job for the
eighteen months preceding the termination hearing. Although we acknowledge that
Father was no longer incarcerated and apparently employed at the time of the termination
hearing, the evidence presented at the termination hearing also established that Father
failed to complete services. Father did not complete home-based services and he stopped
participating in random drug screens because doing so “seemed like too much of a
hassle[.]” Id. at 36. He also failed to visit Child and at the time of the hearing, had not
seen her for three months. Moreover, just a few months before the termination hearing,
Father had expressed a desire to consent to Child’s adoption. For all of these reasons, we
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conclude that the juvenile court’s finding that the conditions that led to Child’s removal
and continued placement outside Father’s care would not be remedied is supported by
clear and convincing evidence.
Father also argues that the juvenile court’s conclusion that termination was in
Child’s best interest was unsupported by the evidence. In determining whether
termination of parental rights is in the best interests of a child, the juvenile court is
required to look beyond the factors identified by the DCS and consider the totality of the
evidence. In re J.C., 994 N.E.2d 2778 (Ind. Ct. App. 2013). In so doing, the juvenile
court must subordinate the interest of the parent to those of the child, and the court need
not wait until a child is irreversibly harmed before terminating the parent-child
relationship. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185(Ind. Ct. App. 2003). “A parent’s historical inability to provide adequate housing,
stability and supervision coupled with a current inability to provide the same will support
a finding that termination of the parent-child relationship is in the child’s best interests.”
Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006),
trans. denied. “Additionally, a child’s need for permanency is an important consideration
in determining the best interests of a child, and the testimony of the service providers
may support a finding that termination is in the child’s best interests.” In re A.K., 924
N.E.2d 212, 224 (Ind. Ct. App. 2010).
In this case, Father has never had custody of Child or provided significant support.
Guardian had custody of Child from her infancy until 2012, when Guardian passed away.
Thereafter, Child was placed with Foster Mother, who is Guardian’s daughter and has
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always been a part of Child’s life. Foster Mother and Child have been observed to have a
bonded relationship, and Foster Mother wishes to adopt Child. Child’s guardian ad litem
testified that he believed termination of Father’s parental rights was in Child’s best
interests because she needs permanency and consistency, which Foster Mother is willing
and able to provide. Likewise, Child’s home-based therapist testified that Child needs
stability and that it is in her best interests to remain with Foster Mother. This evidence is
sufficient to support the juvenile court’s finding that termination of the parent-child
relationship is in Child’s best interests.
This court will reverse a termination of parental rights “only upon a showing of
‘clear error’– that which leaves us with a definite and firm conviction that a mistake has
been made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly v.
Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find no
such error here.
Judgment affirmed.
VAIDIK, C.J., and MAY, J., concur.
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