In the Matter of the Involuntary Termination of the Parent-Child Relationship of: J.J. (Minor Child) and L.J. (Father) v. The Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 24 2019, 8:48 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE:
Danielle L. Gregory INDIANA DEPARTMENT OF
Indianapolis, Indiana CHILD SERVICES
Curtis T. Hill, Jr.
Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
ATTORNEY FOR APPELLEE:
CHILD ADVOCATES, INC.
DeDe Connor
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary June 24, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: J.J. (Minor 18A-JT-3025
Child), Appeal from the Marion Superior
and Court
The Honorable Marilyn Moores,
L.J. (Father), Judge
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3025 | June 24, 2019 Page 1 of 24
Appellant-Respondent, The Honorable Larry Bradley,
Magistrate
v. Trial Court Cause No.
49D09-1805-JT-574
The Indiana Department of
Child Services,
Appellee-Petitioner,
and
Child Advocates, Inc.,
Guardian ad Litem.
Tavitas, Judge.
Case Summary
[1] L.J. (“Father”) appeals the termination of his parental rights to J.J. (the
“Child”). We affirm.
Issues
[2] Father raises two issues, which we revise and restate as follows:
I. Whether procedural error occurred that violated Father’s
due process rights.
II. Whether there was sufficient evidence to terminate
Father’s parental rights.
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Facts
[3] The Child was born to Mother 1 and Father in August 2016. On May 1, 2017,
the Department of Child Services (“DCS”) filed a petition alleging the Child is
a Child in Need of Services (“CHINS”). The petition alleged: (1) Mother’s and
Father’s inability, refusal or neglect to care for the child; (2) the parents
committed an act or failed to act seriously endangering the physical or mental
health; and (3) the Child was born with drugs in his system.
[4] As to Father, the petition alleged that, on or about April 27, 2017, Father tested
positive for amphetamine, methamphetamine, and THC; however, he denied
any drug usage. Father appeared at the detention hearing on May 1, 2017 and
requested counsel. Subsequently, Father was incarcerated 2 and waived a fact-
finding hearing with regard to the CHINS petition. The trial court granted
wardship of the Child to DCS and adjudicated the Child a CHINS on
September 15, 2017. Father did not attend the dispositional hearing; nor did
Father attend the periodic review hearings on December 5, 2017, March 6,
2018, or the permanency hearing on April 24, 2018. Counsel for Father
appeared at each hearing.
1
Mother’s parental rights were also terminated; however, Mother is not a party to this appeal.
2
Father was incarcerated during the entirety of the CHINS and termination proceedings. Initially, Father
was incarcerated for a probation violation after he was charged with several new offenses. Father ultimately
pleaded guilty in May 2017 to intimidation, a Level 5 felony, and domestic battery, a Class A misdemeanor.
Father expects to be released in 2020, at the latest, and is hoping for an earlier release.
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[5] DCS filed a petition to terminate Mother’s and Father’s parental rights on May
10, 2018. Father did not attend several of the initial or pre-trial hearings;
however, counsel for Father did attend the hearings, and Father attended pre-
trial hearings on August 29, 2018, and October 1, 2018, by telephone. The trial
court conducted separate fact finding hearings with regard to the termination of
Mother’s and Father’s parental rights on October 1, 2018, and November 7,
2018, respectively. 3 Father appeared by phone for his fact finding hearing. 4
[6] At the fact finding hearing, K.A. (“Foster Mother”) testified that the Child was
placed with her in April 2017, when the Child was eight months old. Foster
Mother lives with her husband and her eleven-year-old son. Foster Mother
testified that she has a great relationship with the Child and that she is willing
to adopt the child. Foster Mother testified that the Child has not had any visits
with Father while in her care. Father stated that the last time he saw the Child
was in May 2017.
[7] Katrina McGhee is the Child’s guardian ad litem (“GAL”). McGhee testified
that she was happy with the Child’s placement with the foster parents.
McGhee also stated that she “never has had a conversation with dad.” Tr. p.
56. McGhee does not believe that the Child should be returned to parents
3
Because only Father appeals, the relevant facts are the evidence that was presented at the November 7,
2018, hearing.
4
Father did file a motion to transport for the termination fact finding, which the trial court denied. The trial
court did order, however, that Father’s attorney attempt to initiate the ability for Father to video conference
in for the hearing.
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because “both parents are incarcerated,” and accordingly, McGhee “[doesn’t]
know how they would be able to parent [the Child].” Id. McGhee supported
DCS’s position to terminate parents’ rights to the Child and testified that
returning the Child to Mother and Father would be detrimental to the Child
because the Child has not seen either parent in over a year and neither parent
has “participated in any services [for] most of the case.” Id. at 64. McGhee
also noted, however, that Father was not ordered to complete any services
during the CHINS proceeding because Father was incarcerated.
[8] DCS family case manager (“FCM”) Reilly Wilson testified that he contacted
Father through letters and that Wilson received two letters from Father.
Although Father claimed that he was participating in services while
incarcerated, Wilson could not verify Father’s claim. 5 When asked why the
plan changed from reunification to adoption, Wilson stated:
DCS felt that the parents had adequate time to resolve safety
concerns and that [the Child] deserves permanency and those
timelines had been past [sic]. He had been in our system for or
he had been with DCS as a ward of the State for some time and
[Mother and Father] had not alleviated the safety concerns that
DCS initially had for [the Child].
5
Father stated he completed the Inside Out Dad’s Program and participated in: (1) parenting classes; (2)
Healthy Families Program; and (3) the Read to Me Dad Program where Father would record audio of
himself reading books.
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Id. at 74-75. Wilson also stated that Father has not remedied the conditions
that kept the Child out of Father’s care. Wilson also testified that continuation
of the parent-child relationship would pose a threat to the Child’s well-being
and that Father has not demonstrated he can sustain a safe and stable home for
the Child. Wilson requested the trial court terminate the parental rights of
Father.
[9] Wilson acknowledged that he does not recall ever speaking with or visiting
Father while Father was incarcerated. Father was not involved in the making
of the case plan; nor did Wilson ever send Father a case plan. Wilson testified
that he never referred Father to the Father Engagement program because it
“would have done probably little to help” Father, due to the length of Father’s
incarceration. Id. at 91. Father claims that he expressed his desire to
participate in services in a letter to Wilson.
[10] Father testified that his current anticipated release date is May 2020; however,
Father has completed the Purposeful Incarceration program and hopes to be
released earlier. 6 Father acknowledged that he received documentation from
his attorney while he was incarcerated and that his attorney kept Father
updated regarding the case proceedings.
6
As a result of Father’s incarceration for his probation violation, the trial court recommended the Purposeful
Incarceration program in which, after completion of the program, the trial court “will consider modifying
placement in 6th year of sentence.” Petitioner’s Ex. p. 108. Father indicated that, because he completed the
program, he hoped to have his sentence modified soon and that he already had an attorney for his sentence
modification.
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[11] Father and Mother hoped the Child would be reunited with the Child’s paternal
grandfather or Father’s grandmother. 7 Father cannot explain why the Child
was not placed with those relatives. At the hearing, DCS noted that it
completed a home study with regard to paternal grandfather, but recommended
that the Child remain with foster parents.
[12] The trial court terminated Father’s parental rights on November 27, 2018. As
related to Father, the trial court found:
*****
20. Due to [Father] being incarcerated, no services were ordered
by the Court at disposition.
21. Although no documentation was provided, [Father] testified
he has completed a therapeutic community living program, two
parenting classes while in prison, and participates in alcoholics
anonymous and narcotics anonymous.
22. [Father] has been incarcerated during the CHINS case due to
violating probation from a 2012 Burglary (a Class B Felony at the
time) and Robbery (a Class B Felony at the time) by being
charged in May of 2017, of Intimidation using a deadly weapon,
Intimidation where threat is to commit a forcible felony,
Kidnapping, Criminal Recklessness committed with a deadly
weapon, and Domestic Battery.
7
At the beginning of the CHINS proceedings, both Mother and Father also requested that the Child be
placed with a maternal cousin. Furthermore, at the permanency hearing on April 24, 2018, the Child’s
paternal grandfather appeared and requested modification of placement with him.
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23. [Father] pleaded guilty to the counts of Intimidation as a
Level 5 Felony and Domestic Battery as a Class A misdemeanor
on May 7, 2017.
24. [Father] believes his earliest possible release date is in May of
2020. He can request modification of his placement at some
future date. He currently has no hearing pending.
25. [Father] has not seen [the Child] since [the] CHINS case was
filed. He informed the IDCS family case manager that he had
little contact with [the Child] prior to that.
26. [The Child] was not over eight months of age when he last
had contact with his father and is now over the age of two.
27. There is a reasonable probability that the continuation of the
parent-child relationship between [the Child] and his father poses
a threat to [the Child’s] well-being in that it would be a barrier to
[the Child] being adopted into the home he has known and by
the family he knows and is bonded to. Being removed from his
home and foster family would be disruptive, and adversely affect
his well-being.
28. There is a reasonable probability that the conditions that
resulted in the removal and continued placement of [the Child]
outside the home will not be remedied by his father. [Father]
was incarcerated at the beginning of the CHINS case and will
remain so, currently until May of [2020].
29. [The Child] is in a preadoptive home where he has resided
since April of 2017. He has been observed as being very bonded
in the home.
30. [The Child] does not inquire about his mother or father.
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Appellant’s App. Vol. II p. 76. Father now appeals.
Analysis
[13] Father challenges the termination of his parental relationship with the Child.
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. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,
1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is
‘perhaps the oldest of the fundamental liberty interests recognized by th[e]
[c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054
(2000)). We recognize, of course, that parental interests are not absolute and
must be subordinated to the child’s interests when determining the proper
disposition of a petition to terminate parental rights. Id. Thus, “‘[p]arental
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.’” In re K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d
258, 265 (Ind. Ct. App. 2004), trans. denied).
[14] When reviewing the termination of parental rights, we neither reweigh the
evidence nor judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.
2011). We consider only the evidence and reasonable inferences that are 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 Ind. Trial Rule 52(A)).
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[15] Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter
findings of fact that support the entry of the conclusions required by subsections
(a) and (b)” when granting a petition to terminate parental rights. 8 Here, the
trial court did enter findings of fact and conclusions of law in granting DCS’s
petition to terminate Father’s parental rights. When reviewing findings of fact
and conclusions of law entered in a case involving the termination of parental
rights, we apply a two-tiered standard of review. 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. Id. A judgment is clearly erroneous if the
findings do not support the trial court’s conclusions or the conclusions do not
support the judgment. Id.
[16] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
8
Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
delinquent child or CHINS, provide as follows:
(a) Except as provided in section 4.5(d) of this chapter, 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.
(b) If the court does not find that the allegations in the petition are true, the court shall
dismiss the petition.
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31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in part:
(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) The 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 of 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.
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(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.
DCS must establish these allegations by clear and convincing evidence. In re
V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
I. Procedural Irregularities
[17] Father contends that the procedural irregularities during the termination
proceedings resulted in a violation of his procedural due process rights. We
address each of Father’s arguments below. 9
[18] The nature of the process due in parental rights termination
proceedings turns on a balancing of the ‘three distinct factors’
specified in Matthews v. Eldridge, 424 U.S. 319, 335 [ ] (1976): the
private interests affected by the proceeding; the risk of error
created by the State’s chosen procedure; and the countervailing
9
Father argues that DCS failed to “state in the petition whether at least one factor would apply as the basis
for filing a motion to dismiss the termination petition.” Appellant’s Br. p. 23 (footnote omitted). We are
uncertain of how this applies to the matter before us, as there does not appear to be any evidence that DCS
intended to move forward with a motion to dismiss. Accordingly, Father’s argument is waived for failure to
make a cogent argument.
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governmental interest supporting use of the challenged
procedure.
A.P. v. Porter Cty. Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct.
App. 2000) (citations omitted), trans denied. Because of the interlocking CHINS
and termination of parental rights statutes, “procedural irregularities in a
CHINS proceeding[] may be of such import that they deprive a parent of
procedural due process with respect to the termination of his or her parental
rights.” Id. at 1112-13.
[19] DCS argues that Father has waived his argument because he did not object to
any of the procedural irregularities below, which Father acknowledges. Waiver
notwithstanding, Father invites us to consider his arguments pursuant to the
fundamental error doctrine. “The fundamental error doctrine applies to
egregious trial errors.” In re B.R., 875 N.E.2d 369, 375 (Ind. Ct. App. 2007)
(citations omitted), trans. denied. “In order for this court to reverse based on
fundamental error, the error must have been a clearly blatant violation of basic
and elementary principles, and the harm or potential for harm therefrom must
be substantial and appear clearly and prospectively.” Id.
A. Failure to Notify Father
[20] Father first alleges that DCS “failed to provide Father with notice, in writing,
that a petition to terminate his parental rights to [the Child] would have to be
filed” once the Child was in DCS’s care for at least fifteen of the last twenty-two
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months, pursuant to Indiana Code Section 31-34-21-0.2. Appellant’s Br. p. 20.
Indiana Code Section 31-34-21-0.2 provides:
At a child’s first periodic case review occurring after June 30,
1998, the local office is required to advise the child’s parent,
guardian, or custodian in writing that a petition to terminate the
parent-child relationship must be filed with respect to the child
after June 30, 1999, if the child has been removed from the
child’s parent and has been under the supervision of a local office
for at least fifteen (15) months of the most recent twenty-two (22)
months. However, if a child’s parent, guardian, or custodian
fails to appear at the first periodic case review occurring after
June 30, 1998, the local office shall make reasonable efforts to
send notice of the advisement to the last known address of the
parent, guardian, or custodian.
[21] DCS counters that the trial court’s dispositional decree indicates that “failure to
participate as required by a Parental Participation Order under Ind[iana] Code
31-34-20-3 can lead to the termination of the parent-child relationship under
Ind[iana] Code 31-35.” Petitioner’s Ex. 7 p. 44. Moreover, DCS indicates that
Father admitted he received information from his attorney and the trial court’s
orders. 10
[22] While we agree that the trial court notified Father regarding the potential for
termination of his parental rights, the statute clearly indicates that it is DCS’s
10
DCS also argues that the trial court found in its April 24, 2018 order that DCS had complied with the
notice requirements; however, our review of the trial court’s finding indicates that the trial court was
referencing DCS’s compliance with notification requirements for the periodic case review pursuant to
Indiana Code Section 31-34-21-4(a).
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responsibility to do so. 11 That said, Father has failed to prove that he suffered
clear, substantial harm as a result of DCS’s failure. See B.R., 875 N.E.2d at 375.
Father was to remain incarcerated until 2020; therefore, even if Father was
notified of the time frame for the filing of the termination petition, Father has
not shown that he could have been released from incarceration or could have
provided a stable home for the Child had he known about the time frame.
Accordingly, to the extent that DCS’s failure to notify Father was error, Father
has not established fundamental error.
B. Notice of Periodic Case Review
[23] Father claims that he was never notified of the periodic case review hearings
and, therefore, was denied the opportunity to be heard. Pursuant to Indiana
Code Section 31-34-21-4(a), “[e]xcept as provided in subsection (f), at least
seven [] days before the periodic case review, including a case review that is a
permanency hearing under section 7 of this chapter, the department shall
provide notice of the review” to the persons identified in the statute, including
the child’s parent, guardian, or custodian, the attorney of record, a prospective
adoptive parent, foster parents, or other persons.
[24] Although Father did not attend the periodic case review hearings, Father’s
attorney attended and represented Father. Moreover, the trial court’s order on
11
As noted above, Father also acknowledged that his attorney kept him up to date on the proceedings.
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April 24, 2018, indicated that “DCS did provide proof of notice required by
subsection (a) at the periodic case review” to Father. Petitioner’s Ex. 11 p. 62.
[25] Regardless, Father has not demonstrated that any error created clear and
substantial harm. Father had an attorney present at each of the review
hearings, and he had an opportunity to be heard through his attorney. This
case differs from A.P., 734 N.E.2d at 1117, in which the father had a no contact
order with regard to the child and was banned from appearing at the periodic
review hearing, despite the father’s constant requests to be present. Here, the
record does not demonstrate that Father was denied the right to be at the
hearing, unlike the father in A.P. Father cannot establish fundamental error.
C. Failure to Involve Father in Case Planning
[26] Father also argues that he was not included in the case planning for the Child;
nor was he sent the case plan. Under Indiana Code Section 31-34-15-1, a case
plan is required for each child who is under DCS’s supervision. Indiana Code
Section 31-34-15-2 states that:
The department, after negotiating with:
(1) the child’s parent, guardian, or custodian;
...
shall complete a child’s case plan not later than sixty (60) days
after the date of the child’s first placement or the date of a
dispositional decree, whichever occurs first.
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Once the case plan is completed, a copy “shall be sent, not later than ten [] days
after the plan’s completion, to: (1) the child’s parent, guardian, or custodian; . .
.” Ind. Code § 31-34-15-3.
[27] DCS argues that, although this was one of the due process violations identified
in A.P., no case plans are included in the record, nor is evidence regarding the
contents of the case plan in the record; therefore, DCS urges us to follow In re
T.F., 743 N.E.2d 766, 772 (Ind. Ct. App. 2001), trans. denied. In T.F., we
distinguished A.P., stating:
[I]n A.P., although no case plans were made part of the court’s
record prior to the termination hearing, the appellate record
contained nine case plans. However, in our case, the record does
not contain a case plan, thus the record does not reflect whether a
case plan was ever prepared or whether the [parents] were ever
provided with a copy of a case plan. Therefore, in A.P. we had
the opportunity to analyze the case plan concurrently with the
original dispositional order and the multiple review hearing
orders to determine whether the parents were properly notified of
their right to know what conduct could lead to the termination of
their parental rights. In fact, in A.P. we found that the original
dispositional order and the multiple review hearing orders
provided some written notice to the parents, however, the case
plans often contained requirements not contained in the court
orders. Therefore, in A.P. we held that the difference in
requirements between the case plans and the court orders
heightened the importance of providing copies of case plans to
the parents.
T.F., 743 N.E.2d at 771 (citations omitted). Thus, we concluded that, “because
proof of a case plan is not an element enunciated in the termination proceedings
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under Ind[iana] Code § 31-35-2-4, the record of the CHINS proceedings is not
before this court in order for us to examine whether a case plan was prepared
and provided to the [parents].” Id. at 772. The same outcome is required here.
Accordingly, Father has failed to prove that he suffered clear, substantial harm
as a result of DCS’s failure to provide Father with the case plans.
D. Efforts to Reunify
[28] Father also argues that DCS made no efforts to reunify the Child with Father
pursuant to Indiana Code Section 31-34-21-5.5(b), which states:
Except as provided in section 5.6[ 12] of this chapter, the
department shall make reasonable efforts to preserve and reunify
families as follows:
(1) If a child has not been removed from the child’s home,
to prevent or eliminate the need for removing the child
from the child’s home.
(2) If a child has been removed from the child’s home, to
make it possible for the child to return safely to the child’s
home as soon as possible.
[29] DCS responds that it “is not required to provide a parent with services directed
at reunification with the child while the parent is incarcerated,” citing Rowlett v.
Vanderburgh Cty. Office of Family and Children, 841 N.E.2d 615, 622 (Ind. Ct.
App. 2006), trans. denied. In Rowlett, we noted that DCS “did not, nor was it
12
It does not appear that any provisions of sections 5.6 apply in this case.
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required to, provide [the father] with services directed at reuniting him with his
children,” due to [the father’s] incarceration. Id. Father has failed to
demonstrate fundamental error.
E. Failure to Place with Relatives
[30] Finally, Father argues that DCS failed to identify relatives that the Child could
be placed with, despite Mother’s and Father’s request, initially, that the Child
be placed with a maternal cousin and later with paternal grandfather. DCS
responds that consideration of placement with relatives is a requirement for a
CHINS proceeding; however, Father is appealing a termination proceeding.
Indiana Code Section 31-34-4-2 states:
(a) If a child alleged to be a child in need of services is taken into
custody under an order of the court under this chapter and the
court orders out-of-home placement, the department is
responsible for that placement and care and must consider
placing the child with a:
(1) suitable and willing relative; or
(2) de facto custodian;
before considering any other out-of-home placement.
(b) The department shall consider placing a child described in
subsection (a) with a relative related by blood, marriage, or
adoption before considering any other placement of the child.
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[31] We agree with DCS that consideration of relative placement is a concern in a
CHINS proceeding. See In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009)
(concluding that, in termination proceedings, DCS is only required to establish
that there is a satisfactory plan for the care and treatment of the child) (internal
quotations omitted). Accordingly, we find that Father has failed to establish
fundamental error.
II. Sufficiency of Evidence
[32] Father argues that the evidence was insufficient to terminate his parental rights
pursuant to Indiana Code Section 31-35-2-4 (b)(2)(B) and Indiana Code Section
31-35-2-4(b)(2)(C). We will address each in turn below.
A. Conditions that Led to Removal will not be Remedied
[33] Father first argues that the trial court erred in concluding the conditions that led
to the Child’s removal will not be remedied. 13 Specifically Father contends that
he “had voluntarily participated in services while he was incarcerated, he was
pending an early release due to his participation in services, he had a plan for
housing upon his release, and he had a plan for employment upon his release.”
Appellant’s Br. p. 32.
13
Father argues, also, that the trial court erred in concluding that the continuation of the parent-child
relationship between Father and the Child poses a threat to the Child’s well-being. The statute only requires
that DCS prove one of the Indiana Code Section 31-35-2-4(b)(2)(B) factors; therefore, we only address
whether the conditions that led to the Child’s removal will be remedied.
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[34] “In determining whether ‘the conditions that resulted in the [Child’s] removal .
. . will not be remedied,’ we ‘engage in a two-step analysis.’” In re E.M., 4
N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “First,
we identify the conditions that led to removal; and second, we ‘determine
whether there is a reasonable probability that those conditions will not be
remedied.’” Id. In analyzing this second step, the trial court judges the parent’s
fitness “as of the time of the termination proceeding, taking into consideration
evidence of changed conditions.” Id. (quoting Bester v. Lake Cty. Office of Family
& Children, 839 N.E.2d 143, 152 (Ind. 2005)). “We entrust that delicate balance
to the trial court, which 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.
[35] The trial court found that “[t]here is a reasonable probability that the conditions
that resulted in the removal and continued placement of [the Child] outside the
home will not be remedied by his father. [Father] was incarcerated at the
beginning of the CHINS case and will remain so, currently until May of
[2020].” Appellant’s App. Vol. II p. 76. The Child was removed for several
reasons, including Mother’s and Father’s inability, refusal or neglect to care for
the child, and the parents’ acts/omissions that seriously endangered the
physical or mental health of the Child. Father has been unable to remedy the
situations due to his incarceration.
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[36] In K.E. v. Indiana Dept. of Child Services, 39 N.E.3d 641, 648 (Ind. 2015), our
Supreme Court concluded that, “[a]lthough at the time of the termination
hearing Father’s possible release was still over two years away[,] that alone is
insufficient to demonstrate that the conditions for removal will not be
remedied.” Id. Noting that the “release date alone is not determinative,” our
Supreme Court considered “whether other evidence, coupled with [the
consideration that the father was incarcerated,] demonstrates by clear and
convincing evidence a reasonable probability that Father would be unable to
remedy the conditions for removal.” Id.
[37] There, the trial court found that the father had made significant strides because
the father had completed twelve programs during incarceration, “the majority
of which were completed voluntarily and did not result in sentence reductions.”
Id. Moreover, the child in K.E. visited the father every other week for two or
three hours, and the FCM in that case “testified that Father interacts well with
the [child, and the father’s other children] during visitations.” Id. at 649. The
child in K.E. also recognized the father, knew who he was, and the father made
nightly phone calls to the child.
[38] K.E. is distinguishable from the present case. Father has had very little
involvement in the Child’s life, including prior to his incarceration. Father has
not seen the Child since the CHINS case began. While Father has participated
in many programs during his incarceration, some of these programs appear to
have been completed in contemplation of an early release. Moreover, Father
has completed some additional programs for the benefit of his other child, but
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not the Child in the present case. In other words, we do not see Father making
the same improvement as the father in K.E., and Father’s incarceration is not
the sole basis for his failure to remedy the conditions that led to removal.
Accordingly, sufficient evidence supports the finding that the conditions that
led to the Child’s removal will not be remedied.
B. Best Interests of the Child
[39] Father also argues that the trial court erred in concluding that termination is in
the best interests of the Child. Father acknowledges that both the GAL and
FCM indicated that terminating Father’s parental rights was in the Child’s best
interests; however, Father still contends that was not sufficient because Father
participated in services and was bettering himself.
[40] In determining the best interests of a child, the trial court is required to look at
the totality of the evidence. See In re A.B., 887 N.E.2d 158, 167-68 (Ind. Ct.
App. 2008). The trial court must subordinate the interests of the parents to
those of the child involved. Id. at 168. Termination of a parent-child
relationship is proper where the child’s emotional and physical development is
threatened. In re K.T.K., 989 N.E.2d at 1235. A trial court need not wait until
a child is irreversibly harmed such that his or her physical, mental, and social
development is permanently impaired before terminating the parent-child
relationship. Id. Additionally, a child’s need for permanency is a “central
consideration” in determining the best interests of a child. Id.
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[41] Father essentially invites us to reweigh the evidence, which we cannot do. See
C.G., 954 N.E.2d at 923. Father presented the evidence regarding his attempts
at bettering himself to the trial court. DCS presented evidence that Father had
not seen the Child in a significant amount of time. While we commend the
work Father has done while incarcerated, we will not reweigh the evidence to
reach the opposite conclusion as the trial court. The Child is presently in a
stable home with foster parents who are willing to adopt the Child. As these
proceedings occurred when the Child was at such a young age, the Child does
not ask about Mother or Father. We agree that stability of the Child, which
presently exists, is a central consideration in these cases. Accordingly, the trial
court’s conclusion that termination is in the Child’s best interests is not clearly
erroneous.
Conclusion
[42] The procedural irregularities in this case do not constitute fundamental error,
and accordingly, Father’s due process rights were not violated. Sufficient
evidence exists to terminate Father’s parental relationship with the Child. We
affirm.
[43] Affirmed.
Crone, J., and Bradford, J., concur.
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