In the Matter of the Involuntary Termination of the Parent-Child Relationship of: J.C. (Minor Child) and J.M.C. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 30 2018, 9:33 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Renee M. Ortega Curtis T. Hill, Jr.
Lake County Juvenile Public Defender’s Attorney General of Indiana
Office
Crown Point, Indiana Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary July 30, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: J.C. (Minor 18A-JT-536
Child), Appeal from the Lake Superior
Court
and The Honorable Thomas P.
Stefaniak, Jr., Judge
J.M.C. (Father), Trial Court Cause No.
Appellant-Respondent, 45D06-1610-JT-240
v.
Indiana Department of Child
Services,
Appellee-Petitioner.
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Bradford, Judge.
Case Summary
[1] J.M.C. (“Father”) is the father of J.C. (“the Child”). The Child was removed
from Father’s care after instances of physical abuse of the Child by Father. This
abuse is consistent with Father’s historical pattern of abusive and threatening
behavior. Father’s behavior has negatively impacted the Child’s physical and
mental well-being. In seeking the termination of Father’s parental rights, the
Indiana Department of Child Services (“DCS”) expressed concern for the
Child’s safety and well-being due to Father’s failure to adequately change his
behavior or address the traumatic impact his behavior has had on the Child.
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
[2] The Child was born on July 28, 2006. Shortly after the Child’s birth, the
Child’s mother died in a car accident. After the accident, Father was awarded
custody of the Child. DCS became involved in the Child’s life in July of 2014,
after receiving a report that Father had left the then-seven-year-old Child home
alone without any supervision. DCS filed a petition alleging that the Child was
a child in need of services (“CHINS”). The Child remained in Father’s care.
[3] On August 25, 2014, the juvenile court adjudicated the Child to be a CHINS.
Father refused to participate in any of the court-ordered services, did not
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maintain contact with DCS, and failed to notify DCS when he and the Child
moved. DCS Family Case Manager (“FCM”) Teresa Abel became concerned
about the Child’s stability and whether Father was providing the Child with
adequate shelter and food.
[4] The Child was removed from Father’s care on October 30, 2014, after the Child
showed up at school with a black eye. The Child’s injury was not consistent
with the explanation given by the Child as to how he was injured. Father
agreed to participate in services and the Child was eventually returned to
Father’s care.
[5] The Child was again removed from Father’s care in April of 2015, after the
Child disclosed at school that Father “had punched him in the side and slapped
him in the face.” Tr. Vol. II, p. 33. At this time, the Child admitted that Father
had caused his previous black eye. The Child was returned to Father’s care on
December 19, 2015.
[6] The Child was removed from Father’s care for a third time in March of 2016,
after the Child reported that Father had struck him with a water jug, causing
him to fall to the ground and that once he was on the ground, Father
“proceeded to kick him and hit him.” Tr. Vol. III, p. 63. FCM Christina
Olejnik observed “a mark on [the Child’s] forehead and a mark on his left
cheek.” Tr. Vol. III, p. 63. The Child was removed from Father’s care and
placed with his paternal aunt.
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[7] On November 1, 2016, DCS filed a petition seeking the termination of Father’s
parental rights to the Child. During a three-day evidentiary hearing, DCS
presented evidence indicating that (1) Father displayed a pattern of combative
and threatening behavior; (2) Father physically abused both the Child and at
least one other child; (3) although Father had made some progress, concerns
remain about whether this progress would last as he had not addressed the
trauma the Child suffered in relation to Father’s anger issues and physical
abuse; (4) despite his progress, Father was not to the point that he could
adequately care for the Child and service providers could not give a time frame
on when they believed Father might get to the point where they could
recommend reunification; (5) the Child both desires and requires stability and a
sense of finality; (6) termination of the Father’s parental rights was in the
Child’s best interests; and (7) its plan was for the Child to be adopted by his
paternal aunt. On February 27, 2018, the juvenile court issued an order
terminating Father’s parental rights to the Child.
Discussion and Decision
[8] The Fourteenth Amendment to the United States Constitution protects the
traditional right of a parent to establish a home and raise his child. Bester v. Lake
Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). 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
parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),
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trans. denied. Parental rights, therefore, are not absolute and must be
subordinated to the best interests of the child. Id. Termination of parental
rights is proper where the child’s emotional and physical development is
threatened. Id. The juvenile 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. Id.
[9] Father contends that the evidence is insufficient to sustain the termination of his
parental rights to the Child. In reviewing termination 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.
[10] 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.
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[11] Father claims that DCS failed to present sufficient evidence to prove by clear
and convincing evidence that:
(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[; or]
(ii) There is a reasonable probability that the
continuation of the parent-child relationship poses a
threat to the well-being of the child.…
(C) termination is in the best interests of the child[.]
Ind. Code § 31-35-2-4(b)(2).
I. Indiana Code Section 31-35-2-4(b)(2)(B)
[12] 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 child has 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 the juvenile court determines that one of the
above-mentioned factors has been proven and there is sufficient evidence in the
record supporting the juvenile court’s determination, 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 In re S.P.H., 806 N.E.2d at 882.
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[13] In concluding that the conditions leading to the Child’s removal from Father’s
care were not likely to be remedied, the juvenile court found (1) Father has
displayed a historic pattern of physical and emotional violence; (2) Father has
an explosive personality, which he has not been able to get under control; (3)
Father’s therapist indicated that Father had issues with anger and
communication; (4) engagement and interactions between Father and the Child
were lacking with Father focused mainly on himself and the Child being
nonchalant about Father; (5) Father has shown no improvement with regards to
his anger issues or managing his emotions; (6) service providers cannot
recommend that the Child be placed with Father as face to face interactions
between the Child and Father would require supervision due to concerns for the
Child’s safety; (7) given Father’s narcissist personality disorder, change is
unlikely to happen; and (8) Father is “far from having the ability to properly
parent and respond to life stressors in a reasonable manner.” Appellant’s App.
Vol. II, p. 34. Given these findings, the juvenile court concluded both that
Father was not ready to parent the Child without outside help and Father’s
anger issues were not likely to go away given “his chronic inappropriate
responses to outside stressors.” Appellant’s App. Vol. II, p. 34. The juvenile
court also concluded that although Father may have made some progress, his
progress was “too minimal and too late.” Appellant’s App. Vol. II, p. 35. The
juvenile court’s findings and conclusions are supported by the record.
[14] Testimony established that Father has repeatedly engaged in violent and
threatening behaviors. Father has physically abused numerous members of his
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family, including the Child. In fact, the Child was removed from Father’s care
on three separate occasions, with each removal corresponding to an act of
physical abuse of the Child by Father. Father has also displayed a pattern of
threatening behavior toward service providers. Specifically, he threatened to
shoot FCM Abel and has been verbally abusive towards case managers, his
therapists, and the Child’s court-appointed special advocate (“CASA”).
[15] “A pattern of repeated abuse is relevant to a determination that a reasonable
probability exists that the condition will not be remedied.” Lang v. Stark Cty.
Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007).
Importantly, the testimony establishes that while Father may have made some
progress in the months before the evidentiary hearing, Father had yet to
adequately address the trauma the Child suffered in relation to Father’s anger
issues and physical abuse. In addition, Father had not yet progressed to the
point where service providers were confident that he could adequately care for
the Child. For his part, the Child had expressed that he was afraid to be in the
same room as Father without another adult present. Service providers
acknowledged continued concerns for the Child’s safety when with Father and
indicated that they could not give a time frame on when they believed Father
might progress to the point where they could recommend reunification. The
evidence is sufficient to prove that the conditions leading to the Child’s removal
from Father’s care were not likely to be remedied. Father’s claim to the
contrary 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.
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II. Indiana Code Section 31-35-2-4(B)(2)(C)
[16] We are mindful that in considering 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 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. “A parent’s historical inability to
provide a suitable environment along with the parent’s current inability to do
the same supports a finding that termination of parental rights is in the best
interests of the [child].” Lang, 861 N.E.2d at 373. Furthermore, this court has
previously determined that the testimony of the case worker, guardian ad litem
(“GAL”), or a CASA regarding the child’s need for permanency supports a
finding that termination is in the child’s best interests. McBride, 798 N.E.2d at
203; see also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.
[17] FCM Olejnik testified that she believed the termination of Father’s parental
rights was in the Child’s best interests. FCM Olejnik explained that although
Father had recently indicated that he was “open to making a change,” she did
not believe that Father had adequately addressed the trauma that the Child
suffered in relation to Father’s anger issues and physical abuse or progressed to
the point that he could adequately care for the Child. Tr. Vol. III, p. 68. FCM
Olejnik further explained that the Child was “concerned that any point, he
could be returned home and he’s afraid of that.” Tr. Vol. III, p. 68. The Child
has responded well to the stability he feels in his current pre-adoptive placement
and has indicated that he “feels safe there.” Tr. Vol. III, p. 69. Likewise, the
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Child’s therapist Ronald Mosby testified that reunification was “not something
that [he] would recommend.” Tr. Vol. III, p. 20. Mosby acknowledged that
the Child expressed a desire for the case to come to an end and stated that it
would be in the Child’s best interest “to have some finality in these
proceedings.” Tr. Vol. III, p. 39. In terms of permanency, Mosby opined that
continued placement in his current pre-adoptive home was “in [the Child’s] best
interests, due to the fact of, it gives him stability. He feels safe there … it gives
him a place that he’s secure at.” Tr. Vol. III, p. 21. The testimony of FCM
Olejnik and Mosby regarding the Child’s need for permanency is sufficient to
sustain the juvenile court’s finding regarding the best interests of the Child. See
McBride, 798 N.E.2d at 203.
[18] The judgment of the juvenile court is affirmed.
Bailey, J., and Mathias, J., concur.
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