In the Matter of the Termination of the Parent-Child Relationship of: D.W., Minor Child, G.W., Father v. Indiana Department of Child Services ( 2013 )

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 of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN J. HALBERT GREGORY F. ZOELLER
Carmel, Indiana Attorney General of Indiana
ROBERT J. HENKE
PATRICK M. RHODES
Deputies Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
D.W., Minor Child, )
) Dec 19 2013, 10:02 am
G.W., Father, )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1304-JT-333
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn Moores, Judge
The Honorable Roseanne Ang, Magistrate
Cause No. 49D09-1210-JT-41458
December 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
G.W. (Father) appeals the involuntarily termination of his parental rights to D.W.
(Child). He argues the trial court’s finding that he did not complete drug treatment services
was not supported by the evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
Child was born on January 28, 2012, to Father and R.J. (Mother).1 Child was taken
into dustody by the Department of Child Services (DCS) just after being born because
Mother and Child tested positive for cocaine. On March 15, Father and Mother admitted
Child was a Child in Need of Services (CHINS). The juvenile court’s dispositional order,
issued on April 12, ordered Father to maintain suitable housing; obtain and maintain a legal
source of income; refrain from illegal drug use or illegal drug possession; engage in home-
based counseling; complete a parenting assessment and enroll in recommended services;
complete a substance abuse assessment, “follow all treatments and successfully complete all
treatment recommendations” (State’s Ex. 5); submit to random drug screens; follow the terms
of his criminal probation; and visit with Child.
Father completed an inpatient drug treatment program before he was ordered to do so,
but he relapsed shortly afterward. Father’s substance abuse assessment resulted in a
recommendation to enroll in and complete an outpatient drug treatment. Father did not enroll
in or complete the outpatient drug treatment program. Father did not visit with Child after
April 2012. Father obtained housing in May 2012, but he was evicted because he spent his
1
Mother does not appeal the involuntary termination of her parental rights and is not a party to this appeal.
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rent money on crack cocaine. Father tested positive for crack cocaine several times during
the CHINS proceedings.
From May to September 2012, Father was placed in a halfway house program as part
of his sentence for bank fraud in 2010. Father left the halfway house with three months left
on his sentence, and later surrendered to U.S. Marshals. He was placed in the Marion County
jail for three months. Father was offered the option to serve his sentence for leaving the
halfway house by completing three years probation, paying $4,000.00 in fees, completing
regular drug screens, attending Narcotics Anonymous (NA) meetings, and obtaining housing.
Instead, Father chose to serve eleven months in prison, and was transferred to a federal
detention center in Kentucky in December 2012. Father was scheduled to be released from
incarceration in August 2013.
On October 24, 2012, DCS filed a petition to involuntarily terminate parental rights to
Child. After hearing evidence, the juvenile court issued an order terminating Father’s rights.
DISCUSSION AND DECISION
We review termination of parental rights with great deference. In re K.S., 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 trial court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent-child relationship only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S. 1161 (2002).
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When, as here, 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 trial court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
“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. A trial court must subordinate the interests
of the parents to those of the child, however, 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.
To terminate a parent-child relationship in Indiana, the State is required to 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
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supervision of a county office of family and children 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.
Ind. Code § 31-35-2-4(b)(2). The State must prove these allegations by clear and convincing
evidence. 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.
Father challenges the sufficiency of the evidence supporting the trial court’s findings
under Ind. Code § 31-35-2-4(b)(2)(B)(i), which requires DCS to prove the conditions under
which the child was removed would not be remedied. In making such a determination, a
juvenile court must judge a parent’s fitness to care for his or her child at the time of the
termination hearing, taking into consideration evidence of changed conditions. In re J.T.,
742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. It must evaluate the parent’s
habitual patterns of conduct to determine whether there is a substantial probability of future
neglect or deprivation. Id. Pursuant to this rule, courts have properly considered evidence of
a parent’s prior criminal history, drug and alcohol abuse, history of neglect, failure to provide
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support, and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of
Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The juvenile
court may also properly consider, as evidence of whether conditions will be remedied, the
services offered to the parent by DCS and the parent’s response to those services. Id. A
juvenile court need not wait until a child is irreversibly influenced by a deficient lifestyle
such that his or her physical, mental, and social growth are permanently impaired before
terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App.
2002).
Father challenges the findings regarding his participation in substance abuse treatment
programs and his ability to procure stable housing on his release from prison:
9. Subsequent to his discharge from inpatient drug treatment in mid-
March of 2012, [Father] submitted to a drug and alcohol assessment
with Laura Kolbus, chemical dependency assessor with Families First.
Based on [Father’s] disclosures of using $50 to $100 worth of crack
cocaine three to four times per week, using illicit substances for 34
years and trying to quit in the past without being able to maintain long-
term sobriety, Ms. Kolbus recommended that [Father] participate in a
four-month IOP program. [Father] failed to follow the
recommendations of this assessment and has not engaged in additional
drug treatment. [Father’s] last use of illegal substances occurred in
October of 2012.
***
17. [Family Case Manager] Burroughs believes that adoption is in [Child’s]
best interest as her parents have not changed the circumstances that led
to the filing of [Child’s] CHINS matter. Neither parent has received
treatment for their long-term use of illicit substances or obtained stable
housing. . . .
18. The children’s [sic] guardian ad litem, Alane Singleton, believes that
adoption is in [Child’s] best interest as her parents have not addressed
their drug issues, have not seen [Child] in nearly one year and have no
relationship with her. . . .
***
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20. There is a reasonable probability that the conditions that resulted in the
removal of [Child] or the reasons for continued placement outside the
home of her parents, [Mother] and [Father], will not be remedied.
[Mother] and [Father] have been offered drug treatment services by the
Indiana Department of Child Services under two separate causes of
action and each individual continues to use illicit substances. [Finding
about Mother]. [Father] has an extensive history of drug usage, has
failed to participate in drug treatment to address his continued use of
illicit substances, is currently incarcerated and has ceased any attempt at
contact with the [C]hild.
(App. at 19-20.)
Father argues the juvenile court’s findings regarding his participation in substance
abuse treatment programs and his ability to secure stable housing are not supported by the
evidence. During the evidentiary hearing, Father testified he successfully completed an
inpatient substance abuse treatment program before he was ordered to do so by DCS, he
participated in Alcoholics Anonymous and Narcotics Anonymous meetings prior to his
incarceration, and he was in the process of completing a twelve-step substance abuse
treatment program in prison. He also testified he had secured living arrangements with his
older brother once he was released from incarceration, he received income from Social
Security, and he would obtain employment once his health improved.
The trial court noted Father completed a drug treatment program, but there was
evidence he relapsed thereafter. DCS presented evidence Father was ordered to attend a
specific treatment program, and he did not. At the time of the termination hearing, Father
was incarcerated with a possible release date of August 2013. He testified he would be living
with a family member, but presented no other evidence confirming that arrangement and the
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suitability thereof. The trial court is obliged to judge the credibility of the witnesses before it
and base its decision on its assessment thereof, but it need not view the evidence in the same
way a party requests. See Bergman v. Knox Cnty. Office of Family and Children, 750 N.E.2d
809, 812 (Ind. Ct. App. 2001) (juvenile court is not required to give the same weight to
certain testimony as the parent may desire). Father’s arguments are invitations for us to
reweigh the evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate
court cannot reweigh evidence or judge credibility of witnesses). Accordingly, we affirm the
involuntary termination of Father’s parental rights to Child.
Affirmed.
RILEY, J., and VAIDIK, J., concur.
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