In the Matter of the Termination of the Parent-Child Relationship of B.W. (Child) and J.W. (Father) J.W. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
May 06 2016, 8:05 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Donald E. Hamilton Gregory F. Zoeller
Fortville, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination May 6, 2016
of the Parent-Child Relationship Court of Appeals Case No.
of B.W. (Child) and J.W. 30A01-1510-JT-1652
(Father); Appeal from the Hancock Superior
Court
J.W. (Father), The Honorable Terry K. Snow,
Appellant-Respondent, Judge
Trial Court Cause No.
v. 30D01-1503-JT-51
The Indiana Department of
Child Services,
Appellee-Petitioner.
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May, Judge.
[1] J.W. (Father) appeals the termination of his parental rights to his daughter
B.W. (Child). As there was ample evidence to support the termination, we
affirm.
Facts 1 and Procedural History
[2] Child was born in May 2012. The Department of Child Services (DCS) became
involved with the family about three months later 2 when it investigated a report
Child had bruises and scratches on her face. Father and Child’s mother did not
provide a reasonable explanation for the scratches and bruises. Child was
removed from the home and placed with her maternal grandparents. In
December 2012, Child was adjudicated a Child in Need of Services (CHINS),
but in the same adjudication Child was ordered to be re-introduced into the
parents’ home.
[3] Child was removed from the home again a week later. A skeletal survey
revealed Child had suffered three fractures in her legs and possibly two more in
her arms. The injuries occurred when Child was in the parents’ care and a
1
Father does not appear to challenge any of the trial court’s findings of fact. Therefore, they stand as
proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the
findings of the trial court, they must be accepted as correct.”); McMaster v. McMaster, 681 N.E.2d 744, 747
(Ind. Ct. App. 1997) (when father did not challenge specific findings, court accepted them as true).
2
In July 2012, before DCS was involved, police responded to a domestic violence report at the family
residence. Father pled guilty to domestic battery. His probation related to that conviction was revoked after
Father violated the terms.
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doctor testified they were non-accidental, inflicted injuries. Child was again
placed with her grandparents. Father and Mother were charged with two
counts of battery and two counts of neglect of a dependent. Both entered guilty
pleas to one count of neglect of a dependent and were placed in Community
Corrections.
[4] In January 2013, DCS was granted wardship. Child was never returned to the
parents. In January 2014, DCS petitioned for termination of both parents’
parental rights, and in September 2014, the trial court denied the petition. It did
not enter findings of fact or conclusions of law; its Order stated only that DCS
had not proven by clear and convincing evidence that there was a reasonable
probability that the conditions that resulted in Child’s removal would not be
remedied or that there was a reasonable probability that continuing the parent-
child relationship would pose a threat to Child’s well-being.
[5] In February 2014, Father was moved from work release to home detention.
The more visitation Father had with Child, “the more inconsistent Father was
in his attention to the Child.” (App. at 11.) In February 2015, Father tested
positive for alcohol and was placed back on work release, where he is
continuing to serve his sentence for neglect of a dependent. His earliest
expected release date is June 2016.
[6] In March 2015, DCS again petitioned for termination of parental rights. The
trial court took judicial notice of the 2014 hearings. In September 2015, it
terminated the parental rights of both parents. In its order, the trial court noted
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that throughout the CHINS case, Father was unable to demonstrate he could
“consistently and appropriately parent and provide for Child on a full-time
basis,” despite the services DCS offered. (Id. at 12.) It noted evidence that
adoption was in Child’s best interests, based in part on the injuries to Child
while in Father and Mother’s care, the parents’ history of domestic violence,
Father’s violations while in Community Corrections, and “Father’s lack of
recognizing safety concerns for the Child.” (Id.)
Discussion and Decision
[7] Father’s allegation of error appears premised on the fact that the trial court
granted DCS’s petition to terminate Father’s parental rights in 2015 after
denying a termination petition in 2014. He argues there was not enough of a
change in circumstances between the two decisions 3 to permit the grant of the
second petition. Father offers no explanation or citation to authority to support
his apparent premise that a showing of such changed circumstances is required,
3
Father also appears to argue the evidence before the trial court was not sufficiently “clear and convincing”
to permit termination. (Br. of Appellant at 7.) He notes “peculiarities,” (id. at 8), in the CHINS proceedings
and that the CHINS proceedings lasted over three years, but offers no argument that those things affected the
weight of the evidence.
In his brief, Father says a DFC Family Support Specialist testified “[F]ather posed no appreciable risk to his
daughter’s well-being.” (Br. of Appellant at 9.) There is no such testimony on the page of the transcript to
which Father directs us. Father also says he had progressed so far before DCS filed its second petition to
terminate his parental rights that “he was allowed unsupervised visits with his daughter.” (Id.) The
testimony on the page to which Father directs us was the Family Support Specialist’s answer “yes” to the
question whether Father’s supervised parenting time was increased during the duration of the case “until it
got to partially unsupervised parenting time.” (Tr. at 371) (emphasis added).
We acknowledge the evidence to which Father directs us in support of his argument, but there was evidence
to support the trial court’s findings to the contrary, and we may not reweigh it. See, e.g., In re D.D., 804
N.E.2d 258, 265 (Ind. Ct. App. 2004) (we will not, on appeal, reweigh evidence or judge credibility of
witnesses), trans. denied.
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but assuming arguendo it is, there was evidence to support the trial court’s
Order.
[8] We review termination of parental rights with great deference. In re K.S., D.S.,
B.G., and J.K., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.
Ct. App. 2004), trans. denied. Instead, we consider only the evidence and
reasonable inferences most favorable to the judgment. Id. In deference to the
juvenile court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
sub nom In re Swope, 534 U.S. 1161 (2002). And see In re Paternity of J.A.C., 734
N.E.2d 1057, 1059-60 (Ind. Ct. App. 2000) (noting “the particularly broad
discretion entrusted to trial courts in family matters”).
[9] When a judgment contains 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, 147 (Ind. 2005). We determine first whether the
evidence supports the findings and second 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). If the evidence and inferences support the juvenile
court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
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[10] “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. But a trial court
must subordinate the interests of the parents to those of the child when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own child should not be terminated solely
because there is a better home available for the child, id., but parental rights
may be terminated when a parent is unable or unwilling to meet his or her
parental responsibilities. Id. at 836.
[11] To terminate a parent-child relationship, the State must allege and prove:
(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) 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:
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(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) (2012). The State must provide clear and
convincing proof of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61
(Ind. 2009), reh’g denied. If the court finds the allegations in the petition are
true, it must terminate the parent-child relationship. Ind. Code § 31-35-2-8(2012).
[12] In its findings, the court recounted the events that preceded the first petition to
terminate Father’s parental rights, then noted that in February 2015, Father
tested positive for alcohol and was arrested for that Community Corrections
violation. Father’s earliest release date is June of 2016. It noted neither parent
had been able to demonstrate the ability to “consistently and appropriately
parent and provide for the Child on a full-time basis” and that had been the case
“throughout the length of the CHINS case.” (App. at 12.) The court expressed
its concern that no new information had come forward after the first
termination hearing to explain the child’s injuries while in the Parents’ care,
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and “the Court had hoped that the parents could get their lives organized to
benefit their daughter and prevent further state action. Again, this did not
occur.” (Id. at 16.) There was ample evidence to support the termination of
Father’s parental rights.
Conclusion
[13] As the trial court’s findings and conclusions supported its order terminating
Father’s parental rights, we affirm.
[14] Affirmed.
Baker, J., and Brown, J., concur.
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