In the Matter of the Termination of the Parent-Child Relationship of: T.R. (Minor Child), and, C.C. (Father) v. Indiana Department of Child Services ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose Jul 08 2014, 6:16 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS G. KROCHTA GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
ROBERT J. HENKE
DAVID E. COREY
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
)
T.R. (Minor Child), )
)
and, )
)
C.C. (Father), )
)
Appellant Respondent, )
)
vs. ) No. 82A01-1311-JT-497
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Brett J. Niemeier, Judge
The Honorable Renee Allen Ferguson, Magistrate
Cause No. 82D01-1212-JT-120
July 8, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
C.C. (“Father”) appeals the termination of the parent-child relationship with his
daughter, T.R. We affirm.
Issue
Father raises one issue, which we restate as whether the Department of Child
Services (“DCS”) presented sufficient evidence that the termination of the parent-child
relationship is in T.R.’s best interests.
Facts1
T.R. was born in 2003. T.R. and her siblings lived with their mother, E.H.
(“Mother”). In 2011, DCS became involved with the family when T.R. missed seven
days of school. Upon investigation, DCS learned that Mother was using drugs and that
the conditions of the home were insufficient. Soon after DCS became involved with the
family, Father, who has an extensive criminal history, robbed a bank. In December 2012,
Father was sentenced to serve 151 months in a federal prison.
1
Because Father only challenges whether termination of the parent-child relationship is in T.R.’s best
interests, we limit the facts to those relevant to that issue.
2
A petition alleging that T.R. was a child in need of services was filed, and in
December 2012, DCS filed a petition to terminate Mother’s and Father’s parental rights.
Mother voluntarily relinquished her parental rights. At the time of the hearing on the
termination of Father’s parental rights, T.R. was living with a cousin who intended to
adopt her. At the termination hearing, Father indicated he had to “serve like nine years
and something.” Tr. p. 14. Father testified that he would be released from prison when
T.R. was seventeen or eighteen.
On October 22, 2013, the trial court issued an order terminating the parent-child
relationship. The trial court found in part:
31. In the stable, consistent environment provided by the
current relative placement with the assistance of a
psychiatrist, therapists, school counselors, teachers, mentors,
and others, [T.R.’s] behaviors and grades have greatly
improved. She attends school regularly, has greater self-
esteem, and is improving in school. She now appears to be a
happy, increasingly well adjusted child.
*****
33. [T.R.] has a bonded relationship with her half brother
with whom she resides, who may also be available for
adoption by the current relative, pre-adoptive placement.
34. Both the family case managers and the CASA
volunteer testified that [T.R.] needs a permanent, safe home
already available when she is adopted by her current relative
placement.
App. p. 22. The trial court concluded in part, “Termination of the parent-child
relationships between [T.R.] and his [sic] parents are in the child’s best interests. She is
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in a loving stable pre-adoptive home with her half brother.” Id. at 24. Father now
appeals.
Analysis
“When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility.” In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010).
We consider only the evidence and reasonable inferences 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 Indiana Trial Rule 52(A)). Where a trial court
enters findings of fact and conclusions thereon, as the trial court did here, we apply a
two-tiered standard of review. Id. “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, which occurs if
the findings do not support the trial court’s conclusions or the conclusions do not support
the judgment. Id.A petition to terminate a parent-child relationship must allege:
(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
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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.
Ind. Code § 31-35-2-4(b)(2). DCS has the burden of proving these allegations by clear
and convincing evidence. I.A., 934 N.E.2d at 1133.
Father argues there is insufficient evidence to establish that termination of the
parent-child relationship is in T.R.’s best interests. He claims the current placement
should continue as a guardianship while he serves his prison sentence, which will be
completed around the time T.R. turns eighteen. The evidence presented at the hearing,
however, supports the trial court’s findings and its conclusion that termination of the
parent-child relationship is in T.R.’s best interests.
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For example, the CASA testified that it was in T.R.’s best interests to be adopted
by her cousin, “to stay with her brother, and to have a secure future.” Tr. p. 33. The
CASA testified that T.R.’s cousin will ensure that T.R. is educated, dressing properly,
and behaving properly. The CASA explained that being adopted by her cousin will build
up T.R.’s self-confidence and that, with her cousin, T.R. has “every opportunity to be
academically successful, to be a good citizen[.]” Id. at 34. The CASA testified that T.R.
remaining with her cousin without being adopted is not in T.R.’s best interests. The
CASA stated that T.R. in particular needs to be part of a family “because she is separated
from her Mother, her younger brother, and she has issues with that.” Id. at 35.
This is consistent with the testimony of two family case managers. One family
case manager stated that T.R. was doing well in her placement and needed permanency
because Mother relinquished her parental rights and Father was incarcerated for an
extended period of time. The other family case manager explained, “If she is adopted she
knows who her family is and has a safe stable home environment and her needs will be
met.” Id. at 49. This evidence is sufficient to support the trial court’s conclusion that
termination of the parent-child relationship was in T.R.’s best interests.
Conclusion
The DCS presented sufficient evidence that termination of the parent-child
relationship is in T.R.’s best interest. We affirm.
Affirmed.
CRONE, J., concurs.
BAKER, J., concurs with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
)
T.R. (Minor Child), )
)
and, )
)
C.C. (Father), )
)
Appellant-Respondent, )
)
vs. ) No. 82A01-1311-JT-497
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner, )
)
BAKER, Judge, concurring.
While I fully concur with the majority, I write separately to highlight what I
believe is an important distinction between this case and a similar case that was authored
by my esteemed colleague, who also penned the instant case. Indeed, I believe that it is
this very distinction that can determine whether a parent’s rights are terminated.
In In re M.W., M.W. was determined to be a CHINS in September 2008. 943
N.E.2d 848, 850 (Ind. Ct. App. 2011). In October 2008, Father was sentenced to 365
7
days in jail. Id. In December 2008, the juvenile court, following a CHINS proceeding,
ordered Father to participate in various services, including establishing custody in a
court proceeding. Id.Despite the approved permanency plan of reunification, the DCS filed a petition
to terminate Mother and Father’s parental rights in May 2009. Id. at 850-51. When
Father was released from incarceration in August 2009, he asked the DCS if he could
see M.W., but it denied his request. Id. at 851.
In January 2010, Father turned himself in on prior fraud and theft convictions and
was sentenced to one year incarceration. Id. Father was scheduled to be released from
prison on July 8, 2010. Id.At the April 29, 2010 termination hearing, the evidence demonstrated that M.W.
was appropriately bonded with Father. Id. at 852. Additionally, Father had completed
anger management classes, and it had been determined that domestic violence
counseling was unnecessary. Id. Furthermore, all of Father’s drug screens were
negative. Id. Father completed the various assessments and evaluations required of him
and complied with all recommendations. Id. Father maintained employment when he
was not incarcerated and actively sought employment when he was released from
incarceration. Id. In short, Father completed all requirements of the amended case plan
except that he failed to reimburse the DCS for costs, failed to attend every visitation
with M.W., and failed to complete home-based counseling. Id.Following the hearing, the juvenile court entered an order terminating both
parents’ rights. In the order, the juvenile court observed Father’s minimal visitation and
8
employment because of his incarceration. Id. The juvenile court also noted the parents’
lack of cooperation and the numerous opportunities that they had been given to reunite
with their child. Id. Father appealed. Id. at 853.
The M.W. Panel noted that Father had been incarcerated for ten months of the
twenty month period between M.W.’s removal and the termination hearing. Id. at 855.
Father was due to be released shortly after the termination was ordered. Id. Father had
complied with almost all of the requirements of the amended case plan. Id. And
although the juvenile court cited Father’s lack of employment and housing as a basis for
termination, a panel of this court found that “he [had] been penalized for his required
short-term incarceration.” Id. Because Father was scheduled to be released soon, his
ability to establish a stable life could be quickly assessed. Id. Consequently, the M.W.
Panel reversed the termination order as to Father. Id. at 856.
In this case, T.R. is approximately eleven years old, and Father is not scheduled
to be released from prison until she is eighteen years old. Slip op. at 5. Additionally,
T.R. is currently being cared for by her cousin and other family members. Id. at 6.
However, there is a vast difference, particularly to a child, between seven years and one
and one-half years even if that child is cared for by family. Thus, it is apparent that the
longer a parent will be incarcerated at the time of a termination hearing, the more likely
that parent will have his parental rights terminated. See In re J.M., 908 N.E.2d 191, 194-
95 (Ind. 2009) (upholding the trial court’s decision to deny termination of parental rights
when the parents had less than two years of incarceration). That said, many questions
linger. For example, how many remaining years of incarceration are too many? What if
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the parent is working towards an early release? How much should the need for
permanency, as that term is now used in the termination analysis, override a child’s right
to have a relationship with his natural parent, particularly if that child is in family
placement? While such questions are more suited for a majority opinion, I offer them as
proverbial food for thought as we move forward.
We need to remain cognizant of the standard language that we place on almost all
termination cases, namely: “A parent’s interest in the care, custody, and control of his or
her children is perhaps the oldest of the fundamental liberty interests.” In re M.W., 943
N.E.2d at 853. Because I believe that, in this case, the facts indicate that the DCS had
sufficient evidence to terminate Father’s parental rights, I fully concur.
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