In the Matter of the Involuntary Termination of the Parent-Child Relationship of P.W. (Minor Child) R.W. (Father) v. 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 Jul 17 2019, 9:15 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
Megan B. Quirk Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary July 17, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of P.W. (Minor 19A-JT-310
Child); Appeal from the Delaware Circuit
R.W. (Father), Court
The Honorable Kimberly S.
Appellant-Respondent,
Dowling, Judge
v.
The Honorable Amanda Yonally,
Magistrate
Indiana Department of Child
Services, Trial Court Cause No.
18C02-1807-JT-64
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] R.W. (“Father”) appeals the termination of the parent-child relationship with
his daughter, P.W. (“P.W.”), claiming that the Department of Child Services
(“DCS”) failed to prove by clear and convincing evidence that: (1) there is a
reasonable probability that the conditions that resulted in P.W.’s removal or the
reasons for placement outside Father’s home will not be remedied; (2) a
continuation of the parent-child relationship poses a threat to P.W.’s well-being;
and (3) P.W. had been adjudicated a Child in Need of Services (“CHINS”) on
two separate occasions. Concluding that there is sufficient evidence to support
the trial court’s decision to terminate the parent-child relationship, we affirm
the trial court’s judgment.1
[2] We affirm.
Issue
Whether there is sufficient evidence to support the termination of
the parent-child relationship.
Facts
[3] The evidence and reasonable inferences that support the judgment reveal that
P.W. was born in October 2014. In February 2017, when P.W. was two years
old, Father was charged with two counts of Level 2 felony dealing in a narcotic
1
P.W.’s mother (“Mother”) is not a party to this appeal.
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drug and two counts of Level 5 felony neglect of a dependent for selling heroin
in the presence of P.W. Father admitted to using heroin but refused to submit
to a drug screen. At the time of his arrest, Father, who was homeless, had
pending controlled substance possession and dealing charges and was on a pre-
trial supervised release program. Following his arrest, Father was taken to the
county jail, and P.W. was placed with her paternal grandmother (“Paternal
Grandmother”). Shortly thereafter, Paternal Grandmother became ill, and
P.W. was placed with family member A.K. (“A.K.”). In March 2017, P.W.
was adjudicated to be a CHINS.
[4] Father was still incarcerated in July 2018 when DCS filed a petition to
terminate his parental rights. Testimony at the termination hearing revealed
that the State had offered Father the opportunity to plead guilty to his pending
charges in exchange for a fifteen-year sentence. Father had refused the plea
offer and planned to go to trial. If convicted, Father was facing a ten- to thirty-
year sentence. During his two-year pre-trial incarceration, he had completed
two substance abuse programs. He agreed with the State that he had not been
able to financially support P.W. or provide her with food, clothing, or shelter
for the previous two years. He also agreed that A.K. had been meeting all of
P.W.’s needs during that time. Father also testified that he had not seen P.W.
for six months because of the visitation changes at the jail.
[5] Also at the hearing, DCS Family Case Manager Miranda Millben (“Case
Manager Millben”) testified that the conditions resulting in P.W.’s removal had
not been remedied because Father was still incarcerated for the charges that had
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resulted in P.W.’s removal. The case manager further testified that P.W. was a
“complete member of [A.K.’s] family” and that A.K. provided for P.W.’s
clothing, food, shelter, and medical needs. (Tr. 82). According to Case
Manager Millben, A.K. planned to adopt P.W., and P.W. deserved
permanency. CASA Karen Zabel recommended that the trial court terminate
Father’s parental rights and allow A.K. to adopt P.W.
[6] Following the December 2018 hearing, the trial court issued a detailed eight-
page order terminating Father’s parental relationship with P.W. Father
appeals.
Decision
[7] Father argues that there is insufficient evidence to support the termination of his
parental rights. 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., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law
provides for termination of that right when parents are unwilling or unable to
meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.
2005). The purpose of terminating parental rights is not to punish the parents
but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.
1999), trans. denied. When reviewing the termination of parental rights, we will
not weigh the evidence or judge the credibility of the witnesses. K.T.K., 989
N.E.2d at 1229. Rather, we consider only the evidence and reasonable
inferences that support the judgment. Id.
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[8] A petition to terminate parental rights must allege:
(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.
IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[9] Here, Father argues that there is insufficient evidence to support the
termination of his parental rights. Specifically, he contends that the evidence is
insufficient to show that there is a reasonable probability that: (1) the
conditions that resulted in P.W.’s removal or the reasons for placement outside
the parent’s home will not be remedied; (2) a continuation of the parent-child
relationships poses a threat to P.W.’s well-being; and (3) P.W. had been
adjudicated a CHINS on two separate occasions.
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[10] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the
disjunctive. Therefore, DCS is required to establish by clear and convincing
evidence only one of the three requirements of subsection (B). In re A.K., 924
N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there
is a reasonable probability that the conditions that resulted in P.W.’s removal or
the reasons for her placement outside the home will not be remedied.
[11] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to judge a parent’s
fitness at the time of the termination proceeding, taking into consideration
evidence of changed conditions and balancing any recent improvements against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. Habitual conduct may include
parents’ prior criminal history, drug and alcohol abuse, history of neglect,
failure to provide support, and a lack of adequate housing and employment.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).
[12] Here, our review of the evidence reveals that at the time of P.W.’s removal,
Father was homeless, unable to provide for his daughter’s needs, and had just
been arrested for dealing in a narcotic drug and neglect of a dependent for
selling heroin in her presence. Two years later, at the time of the termination
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hearing, Father was still incarcerated for those offenses and, if convicted, was
facing a sentence of ten to thirty years. He was also still unable to provide for
his daughter’s needs. The evidence further reveals that P.W. was a “complete
member of [A.K.’s] family” and that A.K. provided for P.W.’s clothing, food,
shelter, and medical needs. (Tr. at 82). This evidence supports the trial court’s
conclusion that there was a reasonable probability that the conditions that
resulted in P.W.’s placement outside the home would not be remedied. We
find no error.2,3
[13] Affirmed.
Riley, J., and Bailey, J., concur.
2
Father’s reliance on K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 64 (Ind. 2015) is misplaced. There, the
Indiana Supreme Court concluded that there was insufficient evidence that there was a reasonable probability
that the conditions that resulted in the children’s placement outside the home would not be remedied where
an incarcerated father was demonstrating his dedication to obtain reunification by speaking to his children
nightly on the telephone and bonding with his children through regular visitation. Id. at 649. In addition, the
father’s release from incarceration was less than a year away. Here, Father does not speak to his daughter
nightly and is unable to bond with her through regular visitation. In addition, at the time of the hearing,
Father’s release from prison was possibly ten to thirty years away.
3
Pursuant to Indiana Evidence Rule 201(b), this Court may take judicial notice of records of a court of this
state. Here, we take judicial notice of Father’s conviction and sentence in Cause Number 18C03-1702-F2-3.
Our review of those records reveals that Father pleaded guilty to one count of Level 2 felony dealing in a
narcotic drug and one count of Level 5 felony neglect of a dependent. The trial court sentenced Father to
fifteen (15) years for the Level 2 felony and five (5) years for the Level 5 felony and ordered the sentences to
run concurrently with each other. Father’s earliest possible release date is in April 2028.
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