In the Matter of the Termination of the Parent-Child Relationship of J.O. (a minor child) J.O. (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 Jul 17 2019, 9:01 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
John R. Worman Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination July 17, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of J.O. (a minor child); 19A-JT-48
J.O. (Father), Appeal from the Vanderburgh
Superior Court
Appellant-Respondent,
The Honorable Brett J. Niemeier,
v. Judge
Trial Court Cause No.
The Indiana Department of 82D04-1807-JT-1389
Child Services,
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] J.O. (“Father”) appeals the termination of the parent-child relationship with his
son, J.O. (“J.O.”).1 He contends that 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 J.O.’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 the J.O.’s well-being; and (3)
termination of the parent-child relationship is in J.O.’s best interests.
Concluding that there is sufficient evidence to support the trial court’s
termination of the parent-child relationship, we affirm the trial court’s
judgment.2
[2] We affirm.
1
J.O.’s mother (“Mother”) is not a party to this appeal.
2
Father also argues that he was “denied due process when DCS failed to comply with state law requiring it
to move to dismiss a termination petition when it failed to provide necessary services.” (Father’s Br. at 12.).
In support of his argument, Father directs us to INDIANA CODE § 31-35-2-4.5, which provides that “[a] person
described in section 4(a) of this chapter may file a motion to dismiss the petition to terminate the parent-child
relationship if any of the following circumstances apply[.]” (emphasis added). First, Father has waived
appellate review of this issue because he failed to raise it at the termination hearing. See Hite v. Vanderburgh
Cnty OFC, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006) (explaining that it is “well established that we may
consider a party’s constitutional claim waived when it is raised for the first time on appeal.”) Waiver
notwithstanding, we find no error. The interpretation of a statutory scheme is a question of law reserved for
the courts. G.E. v. Ind. Dep’t of Child Servs., 29 N.E.3d 769, 771 (Ind. Ct. App. 2015). When determining the
legislature’s intent, we look at the plain language of the statute and attribute the common, ordinary meaning
to terms found in everyday speech. Id. If the word “shall” is used, it is constructed as mandatory language
creating a statutory right to a particular outcome after certain conditions are met. Id. However, the term
“may” in a statute ordinarily implies a permissive condition and a grant of discretion. Id. Here, the plain
language of the statute reveals that filing a motion to dismiss the petition is permissive and is discretionary
rather than required. Father’s argument therefore fails.
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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
Father was incarcerated when J.O. was born in December 2012. Father was
released from prison in early 2013. In May 2013, the State charged Father with
dealing methamphetamine, unlawful possession of a syringe, and resisting law
enforcement. In August 2013, Father pled guilty to all three charges. Shortly
after his 2014 release from prison on those convictions, Father punched his
girlfriend in the face and was charged with armed robbery, battery with a
deadly weapon, and theft. Father subsequently pled guilty to the theft charge in
September 2014.
[4] In November 2014, Father and Mother were involved in one of their frequent
domestic disputes when Mother sustained numerous facial fractures after
Father punched her in the face. As a result of the domestic violence, DCS
removed J.O. from his parents that same month and filed a petition alleging
that J.O. was a Child in Need of Services (“CHINS”). The State charged
Father with battery with moderate bodily injury and battery resulting in serious
bodily injury in December 2014.
[5] Following J.O.’s removal, Father was admitted to a substance abuse treatment
program at Brentwood Meadows (“Brentwood”) in December 2014. At the
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time of his admission, Father tested positive for methamphetamine, THC, and
benzodiazepines and admitted that he had been using K2 for years. In January
2015, the State charged Father with auto theft and theft. His resulting
incarceration caused him to miss multiple treatment appointments at
Brentwood, and he was discharged from the program that same month. He
subsequently completed the program in February 2015.
[6] Also in February 2015, J.O was adjudicated to be a CHINS. The following
month, the trial court ordered Father to: comply with random drug screens;
obtain a substance abuse evaluation and follow treatment recommendations;
remain drug free; and attend supervised visitation with J.O..
[7] In April 2015, Father’s mother and stepfather (“Paternal Grandparents”)
petitioned to be J.O.’s guardians. That same month, J.O.’s maternal great aunt
and her domestic partner (“the Aunts”) filed a petition to adopt J.O. in a
separate proceeding. Their petition alleged that Father’s and Mother’s consent
to the adoption was not required pursuant to INDIANA CODE § 31-19-9-8. At a
hearing later that month, the trial court consolidated the CHINS, the
guardianship, and the adoption proceedings. In July 2015, the State charged
Father with intimidation, criminal mischief, and arson involving Paternal
Grandparents’ house.
[8] During the pendency of the proceedings, in June 2016, DCS filed a petition to
terminate Mother’s and Father’s parental rights. In November 2016, the trial
court held a hearing in the adoption and termination proceedings. Following
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the hearing, the trial court concluded that Father’s consent to the adoption was
irrevocably implied. The trial court issued an order granting the Aunts’ petition
to adopt J.O., effectively closing the CHINS, guardianship, and termination
proceedings. Father appealed, and, in November 2017, this Court reversed the
trial court after concluding that the trial court had erred in concluding that
Father’s consent to the adoption was irrevocably implied. In the Matter of
Adoption of J.R.O., 87 N.E.3d 37, 43 (Ind. Ct. App. 2017), trans. denied.
[9] Shortly after this Court reversed the adoption, Father punched his mother in the
face while children were in the home. The State charged Father with resisting
law enforcement, domestic battery, and domestic battery committed in the
presence of a child less than sixteen years old. The following month, at the
request of his mother and with the State’s approval, Father was admitted to a
long-term, faith-based treatment program in Texas. The State agreed to dismiss
the charges against Father if he successfully completed the program.
[10] In July 2018, DCS filed a second petition to terminate Father’s parental rights.
Testimony at the October 2018 termination hearing revealed that Father had
just completed the Rise Discipleship Program in Abilene, Texas, and that, in
two years, he would be in a position to return to Indiana from Texas to start his
own ministry. Father explained that he would raise the money that he needed
to start the ministry through fundraisers. Father suggested that J.O. could live
with Paternal Grandparents until Father returned to Indiana. Father further
testified that he had not had any contact with J.O. in two years.
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[11] DCS Family Case Manager Jodi Straus (“Case Manager Straus”) testified that
she had been J.O.’s case manager for four years. According to Case Manager
Straus, J.O. had been removed from the home because of domestic violence
between Mother and Father. However, additional issues, such as Father’s
violent criminal history, manifested themselves during the CHINS case. When
asked if she had any current concerns regarding Father and his use of illegal
substances, Case Manager Straus explained as follows: “I have concerns since I
haven’t had recent contact with him and I have not received any records from
Abilene, Texas so I don’t really know what kind of treatment he’s going
through at this time. He is also not drug screened for us.” (Tr. at 76). The case
manager further explained that she had not received a drug screen from Father
in two years. In addition, Case Manager Straus was not able to say that Father
could provide J.O. with suitable housing, stability, or an environment free of
violence and crime. Nor was she able to say that Father had a steady source of
income for J.O.’s necessities. She further testified that termination was in J.O.’s
best interests. The plan for J.O. was adoption by the Aunts. According to Case
Manager Straus, the Aunts had provided six-year-old J.O. with a stable loving
home for the past three years. The case manager also testified that J.O. was
bonded with the Aunts and other children in their family and that it would be
detrimental to remove him from that home. Court Appointed Special Advocate
Deborah Gamache (“CASA Gamache”) also testified that termination was in
J.O.’s best interests.
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[12] Following the hearing, in December 2018, the trial court issued a detailed
thirteen-page order terminating Father’s parental relationship with J.O. In the
order, the trial court concluded as follows: “There is a reasonable probability
that . . . [t]he conditions which resulted in [J.O.’s] removal or in [J.O.’s]
continued placement outside the home will not be remedied as the father
cannot take the child at the present time.” (Tr. Vol. 2 at 25). Father appeals.
Decision
[13] Father contends 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.
[14] A petition to terminate parental rights must allege:
(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). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[15] Here, Father first contends that the evidence is insufficient to show that there is
a reasonable probability that: (1) the conditions that resulted in J.O.’s removal
or the reasons for placement outside the parent’s home will not be remedied;
and (2) a continuation of the parent-child relationships poses a threat to J.O.’s
well-being.
[16] 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.2d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there
is a reasonable probability that the conditions that resulted in J.O.’s removal or
the reasons for his placement outside the home will not be remedied.
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[17] When making a determination as to whether there is a reasonable probability
that the conditions that resulted in a child’s removal or continued placement
outside the home will not be remedied, a trial court must judge a parent’s fitness
at the time of the termination proceeding, taking into consideration evidence of
changed circumstances. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,
1157 (Ind. Ct. App. 2013). The trial court must also evaluate the parent’s
habitual patterns of conduct to determine the probability of future neglect or
deprivation of the child. Id. Habitual conduct may include a parent’s prior
criminal history, drug and alcohol abuse, history of neglect, failure to provide
support, and a lack of adequate housing and employment. Id. The trial court
may also consider services offered to the parent by DCS and the parent’s
response to those services as evidence of whether conditions will be remedied.
Id. DCS is not required to provide evidence ruling out all possibilities of
change. Id. Rather, it need only establish a reasonable probability that the
parent’s behavior will not change. Id
[18] Here, our review of the evidence reveals that during the four-year pendency of
the proceedings, Father was in and out of jail and treatment programs. At no
time during the proceedings was Father able to provide stability, supervision, or
housing for his son. At the time of the termination hearing, Father, who had
not seen his son in two years, told the trial court that he would not be in a
position to provide stability, supervision, or housing to his son for two
additional years. Father explained that he needed the additional time to raise
money necessary to start his own ministry in Indiana. This evidence supports
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the trial court’s conclusion that there was a reasonable probability that the
reasons for J.O.’s placement outside the home would not be remedied. We find
no error.
[19] Father also argues that there is insufficient evidence that the termination was in
J.O.’s best interests. In determining whether termination of parental rights is in
the best interests of a child, the trial court is required to look at the totality of
the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.
denied. In so doing, the court must subordinate the interests of the parents to
those of the child involved. Id. Termination of the parent-child relationship is
proper where the child’s emotional and physical development is threatened. In
re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial 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. In addition, a child’s need for permanency is a
central consideration in determining the child’s best interests. In re G.Y., 904
N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers
may support a finding that termination is in the child’s best interests. McBride v.
Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.
2003).
[20] Here, our review of the evidence reveals that at the time of the termination
hearing, J.O. had been living in a stable and loving home with the Aunts for
three years. Case Manager Straus testified that J.O. was bonded with the Aunts
and the other children in their family and that it would be detrimental to
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remove him from that home. She further testified that termination was in J.O.’s
best interests. CASA Gamache also testified that termination was in J.O.’s best
interests. The testimony of these service providers, as well as the other evidence
previously discussed, supports the trial court’s conclusion that termination was
in J.O.’s best interests.
[21] We reverse a termination of parental rights “only upon a showing of ‘clear
error’ - that which leaves us with a definite and firm conviction that a mistake
has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
1235 (Ind. 1992). We find no such error here and therefore affirm the trial
court.
[22] Affirmed.
Riley, J., and Bailey, J., concur.
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