In the Matter of the Involuntary Termination of the Parent-Child Relationship of: C.R. (Minor Child), and N.S. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 12 2019, 9:50 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen E. Wrenbeck Curtis T. Hill, Jr.
Monroe County Public Defender Attorney General of Indiana
Bloomington, Indiana
Patricia C. McMath
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary April 12, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 18A-JT-2550
C.R. (Minor Child), Appeal from the Monroe Circuit
Court
and
The Honorable Stephen R. Galvin,
N.S. (Father), Judge
Appellant-Respondent, Trial Court Cause No.
53C07-1801-JT-33
v.
The Indiana Department of
Child Services,
Appellee-Petitioner
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Baker, Judge.
[1] N.S. (Father) appeals the order terminating his parent-child relationship with
C.R. (Child). Father argues that there is insufficient evidence supporting the
termination order. Finding the evidence sufficient, we affirm.
Facts
Prior Case
[2] Child’s sibling (Sibling) was born to Mother1 and Father on June 30, 2015. At
the time of Sibling’s birth, she tested positive for opiates and cocaine and
Mother tested positive for marijuana, cocaine, and opiates. Sibling was found
to be a Child in Need of Services (CHINS), and as part of the CHINS case,
Father was ordered, in relevant part, to participate with substance abuse
treatment and submit to random drug screens. He participated with substance
abuse treatment for several months, but after testing positive for cocaine in
August 2016, he stopped attending treatment and stopped providing drug
screens. In September 2016, Sibling’s permanency plan was changed to
adoption, and ultimately Mother and Father each consented to termination of
the parent-child relationship.
1
Mother is not a party to this appeal.
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Current Case
[3] Child was born on January 20, 2017. Four days later, the Department of Child
Services (DCS) filed a petition alleging that Child was a CHINS because
Mother had tested positive for methamphetamine. Child was removed from
Mother’s care and custody at that time and was not placed with Father because
he did not have housing and was using illegal substances. On March 2, 2017,
the trial court found Child to be a CHINS, based in part on Father’s ongoing
substance abuse issues and failure to participate consistently with court ordered
services. At the April 3, 2017, dispositional hearing, Father was again ordered
to participate with substance abuse treatment and random drug screens.
[4] Father participated with and completed the Recovery Process Group in June
2017 and the Mapping Group in August 2017. But he did not complete a
parenting assessment, had stopped participating with the Fatherhood
Engagement Program, and was attending less than half his supervised visits
with Child. He also failed to appear for many drug screens and, when he did
participate, tested positive for cocaine.
[5] In January 2016, Father had been convicted of dealing in a Schedule II
controlled substance, but his 900-day sentence was suspended. On September
27, 2017, he was placed on home detention after violating the terms of
probation and, after approximately one month, he moved to a sober living
facility. Once he was placed on home detention, Father’s compliance with
services improved. He participated with substance abuse treatment, provided
clean drug screens, and attended visits with Child more consistently.
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[6] Father was released from home detention on April 24, 2018. In May and June,
Father again tested positive for controlled substances. On August 7, 2018, he
tested positive for methamphetamine, cocaine, opiates, and alcohol. The
caseworker administering the drug test found it difficult to communicate with
him because he was so intoxicated.
[7] On August 15, 2018, Father was arrested for violating the terms of his
probation. At the time of the termination hearing, he was still incarcerated, and
his probation officer was recommending that he serve the remainder of his
suspended sentence in jail. She testified that Father is not committed to
substance abuse treatment. Father has rarely had stable housing during the
three years since Sibling was found to be a CHINS.
[8] When Child was removed from her parents’ care and custody four days after
her birth, she was placed in a foster home where she has remained. The home
is preadoptive and Child is thriving.
[9] On January 8, 2018, DCS filed a petition to terminate the parent-child
relationship between Child and her parents. A termination hearing took place
on September 17 and 24, 2018, and on September 27, 2018, the trial court
entered an order terminating the parent-child relationship. Father now appeals.
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Discussion and Decision
I. Standard of Review
[10] Our standard of review with respect to termination of parental rights
proceedings is well established. In considering whether termination was
appropriate, we neither reweigh the evidence nor assess witness credibility.
K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will
consider only the evidence and reasonable inferences that may be drawn
therefrom in support of the judgment, giving due regard to the trial court’s
opportunity to judge witness credibility firsthand. Id. Where, as here, the trial
court entered findings of fact and conclusions of law, we will not set aside the
findings or judgment unless clearly erroneous. Id. In making that
determination, we must consider whether the evidence clearly and convincingly
supports the findings, and the findings clearly and convincingly support the
judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing
evidence that the child’s emotional and physical development are threatened by
the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,
839 N.E.2d 143, 148 (Ind. 2005).
[11] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate
parental rights for a CHINS must make the following allegations:
(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.
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DCS must prove the alleged circumstances by clear and convincing evidence.
K.T.K., 989 N.E.2d at 1230.
II. Termination
[12] Father argues that DCS failed to prove by clear and convincing evidence that
(1) there is a reasonable probability that the reasons for placement outside his
home will not be remedied and (2) termination is in Child’s best interests.
A. Reasons for Placement Outside Father’s Home
[13] Child was originally removed from Mother’s care and custody because Mother
tested positive for methamphetamine. She was not placed with Father at that
time because he did not have stable housing and, based on his track record in
Sibling’s CHINS case, there were concerns about his ongoing substance abuse.
Child has continued to be placed outside his care and custody based on those
same reasons.
[14] Over the course of Sibling’s and Child’s CHINS and termination proceedings,
Father has had three years to demonstrate that he can maintain sobriety, stay
out of jail, and provide a safe, stable, and appropriate home. He has failed on
all counts, despite multiple opportunities to address his substance abuse and
any other underlying issues. The only time Father was able to fully comply
with services and maintain sobriety was when he was on home detention.
Within a month of release from home detention, Father was again testing
positive for illegal substances and alcohol and visits with Child once again
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became sporadic. Moreover, Father has never been able to find and maintain
suitable housing.
[15] Father highlights his ability to comply with services and maintain sobriety
during the months he was on home detention. While that is certainly laudable,
the trial court found that once Father was out from under the close supervision
and reporting requirements of home detention, Father was unable to stay sober,
participate with services, or visit with Child regularly.
[16] At the time of the termination hearing, the reasons Father could not care for
Child—substance abuse and lack of housing, plus incarceration—were precisely
the same reasons preventing her placement with him at the time she was first
removed. Given this record, we find that the trial court did not err by
concluding that DCS proved by clear and convincing evidence that the reasons
for Child’s continued placement outside of Father’s care and custody would not
be remedied.
B. Best Interests
[17] Finally, Father contends that the trial court erred by finding that termination is
in Child’s best interests. Child has waited two years for Father to turn his life
around, achieve and maintain sobriety, and find suitable housing. But he has
failed on all counts, repeatedly, except when under the close supervision of
home detention. We acknowledge the reality that substance abuse is a veritable
mountain to climb, and we see the evidence here that Father has tried to climb
it. But he has not done so soon enough or consistently enough, and we find no
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error with respect to the trial court’s determination that Child has waited long
enough.
[18] Child is thriving in a preadoptive home that is the only home she has ever
known, and we see no evidence that Father is capable of turning things around
on a timeline that is in his daughter’s best interests. Therefore, we find that the
trial court did not err by finding that termination of the parent-child relationship
is in Child’s best interests.
[19] The judgment of the trial court is affirmed.
Najam, J., and Robb, J., concur.
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