In the Matter of the Involuntary Term. of the Parent-Child Rel. of J.M., Minor child, and J.M. and Z.W. v. Indiana Dept. of Child Services ( 2013 )

Aug 07 2013, 5:33 am
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 APPELLANTS: ATTORNEYS FOR APPELLEE INDIANA
DEPARTMENT OF CHILD SERVICES:
NANCY A. MCCASLIN SERGIO A. LOPEZ
McCaslin & McCaslin DCS Local Office in Elkhart County
Elkhart, Indiana Elkhart, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary Termination of )
the Parent-Child Relationship of J.M., Minor Child,)
and )
J.M., and Z.W., )
)
Appellants-Respondents, )
)
vs. ) No. 20A03-1301-JT-19
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
The Honorable Deborah Domine, Magistrate
Cause No. 20C01-1206-JT-18
August 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
J.M. (“Mother”) and Z.W. (“Father”), the parents of J.M., appeal the involuntary
termination of their parental rights, challenging the sufficiency of the evidence supporting
the trial court’s termination order.
We affirm.
FACTS AND PROCEDURAL HISTORY
Mother and Father are the parents of J.M., who was born in November 2009. On
February 22, 2011, the Indiana Department of Child Services (“DCS”) received a report
that Mother attempted suicide by crashing her vehicle at a high rate of speed. J.M. was in
the car. The report indicated that Mother was diagnosed with schizophrenia and other
mental health issues, and had failed to take medication as prescribed for her mental
health. As a result of Mother’s suicide attempt, Mother was hospitalized for a day.
While she was hospitalized, she attempted to commit suicide by hanging herself. The
report also indicated that Mother was facing charges for theft and would be incarcerated
on those charges upon her release. The report further noted that Mother had a history of
addiction to crack cocaine, was staying at a homeless shelter with J.M., and did not have
a stable home.
DCS removed J.M. from Mother’s care and filed a petition alleging J.M. was a
Child in Need of Services. On June 4, 2012, DCS filed its petition for involuntary
termination of parental rights. Following an evidentiary hearing, the court issued its
ruling terminating the parental rights of both Mother and Father. Mother and Father now
appeal.
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DISCUSSION AND DECISION
Mother and Father argue that the evidence does not support the conclusion that
their parental rights should have been terminated. We begin our review by
acknowledging that this court has long had a highly deferential standard of review in
cases concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind.
Ct. App. 2001). When reviewing a termination of parental rights case, we will not
reweigh the evidence or judge the credibility of the 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 that are most favorable to the judgment. Id. Moreover, in
deference to the trial court’s unique position to assess the evidence, we will set aside the
court’s 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).
Here, in terminating the parental rights of Mother and Father, the trial court
entered specific findings and conclusions.1 When a trial court’s 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). First, we determine whether the evidence supports the findings, and second, we
determine 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
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We commend the trial court for the clarity and thoroughness of its factual findings which have
significantly assisted appellate review.
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inferences support the trial court’s decision, then we must affirm. L.S., 717 N.E.2d at
208.
The Fourteenth Amendment to the United States Constitution protects the
traditional liberty interest of parents to establish a home and raise their children. Troxel
v. Granville, 530 U.S. 57, 65 (2000); see also In re M.B., 666 N.E.2d 73, 76 (Ind. Ct.
App. 1996), trans. denied. These parental interests, however, are not absolute and must
be subordinated to the child’s interests when determining the proper disposition of a
petition to terminate parental rights. M.B., 666 N.E.2d at 76. In addition, although the
right to raise one’s own child should not be terminated solely because there is a better
home available for the child, parental rights may be terminated when a parent is unable or
unwilling to meet his or her parental responsibilities. K.S., 750 N.E.2d at 836. The
purpose of terminating parental rights is not to punish parents but to protect their
children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).
Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, in pertinent part, the following:
(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) termination is in the best interests of the child; [and]
(D) there is a satisfactory plan for the care and treatment of the child.
See Ind. Code § 31-35-2-4(b)(2). Moreover, the State’s burden of proof in termination of
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parental rights cases is one of clear and convincing evidence. Ind. Code § 31-34-12-2;
see also In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009). Clear and convincing
evidence need not reveal that the continued custody of the parents is wholly inadequate
for the child’s very survival. Bester, 839 N.E.2d at 148. Rather, it is sufficient to show
by clear and convincing evidence that the child’s emotional development and physical
development are put at risk by the parent’s custody. Id.
Mother and Father challenge the sufficiency of the evidence supporting the trial
court’s findings as to subsections (b)(2)(B), (b)(2)(C), and (b)(2)(D) of the termination
statute cited above. See Ind. Code § 31-35-2-4(b)(2). Each challenge will be discussed
in turn.
Under subsection (b)(2)(B), the trial court found that both (i) and (ii) were true.
However, because the statute only requires proof of one, we will consider only whether
clear and convincing evidence supported the trial court’s conclusion 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. See Ind. Code § 31-35-2-4(b)(2)(B)(i). In making its
determination, the trial court does not need to wait to terminate parental rights until a
child is irreversibly influenced by a deficient lifestyle so that his physical, mental, and
social growth is permanently impaired. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App.
2002). To determine whether there is a reasonable probability that the conditions which
resulted in the removal of the child will not be remedied, the trial court should judge a
parent’s fitness to care for his 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.
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App. 2001).
With respect to Mother, the court noted Mother’s attempted suicide by driving her
car in the wrong direction at a high rate of speed while J.M. was a passenger, her eighteen
months of noncompliance with the mental health services offered through the CHINS
case, and eighteen months of cycling between engaging in treatment, relapse, and
multiple suicide attempts. Although noting Mother’s commendable behavior in the
preceding two months, the court also observed that Mother was still homeless at the time
of the court’s termination decision and that there were long delays in getting Mother into
the services she required because she often could not be located. Consistent with our
standard of review, the evidence supported the trial court’s conclusion that the conditions
leading to J.M.’s removal from Mother’s care were not remedied.
As to Father, the trial court noted that Father lacks a bond with J.M. The court
observed that Father had seen J.M. only three times in J.M.’s three years of life and,
importantly, that Father had not seen J.M. for more than twenty months since the CHINS
case began. In making its termination decision, the court further observed that Father has
a history of domestic violence, giving rise to his extended period of incarceration, and
that there was no evidence, outside of Father’s testimony, to substantiate that Father had
participated in any services to address the violence that resulted in his incarceration. The
court noted that Father was unable to care for J.M. at the time J.M. was taken into
custody and that, at the time of its termination decision, Father was still incarcerated and
unable to care for J.M. The court concluded that the conditions that resulted in the
removal of J.M. from the home had not been remedied and the evidence was sufficient to
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support that conclusion.
Mother and Father next contend that, under subsection (b)(2)(C), the evidence was
not sufficient to conclude that termination of their parental rights is in the best interests of
J.M. See Ind. Code § 31-35-2-4(b)(2)(C). In determining what is in a child’s best
interests, the trial court is required to look beyond the factors identified by DCS and
consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App.
2009). We have previously held that the recommendations of the case manager and
court-appointed advocate to terminate parental rights, in addition to evidence that the
conditions resulting in removal will not be remedied, is sufficient to show by clear and
convincing evidence that termination is in the child’s best interests. Id. A parent’s
historical inability to provide a suitable environment along with the parent’s current
inability to do the same supports a finding that termination of parental rights is in the best
interests of the child. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,
373 (Ind. Ct. App. 2007).
In addition to the findings set forth previously, establishing that the conditions
resulting in J.M.’s removal had not be remedied, the trial court found that J.M.’s DCS
case manager and the court-appointed special advocate (“CASA”) each testified that
termination would be in J.M.’s best interests. Mother and Father question the
conclusions of the DCS case manager and the CASA, but these arguments appear to be a
request for this court to reweigh the evidence, a task we will not undertake on review. In
re C.S., 863 N.E.2d 413, 417 (Ind. Ct. App. 2007), abrogated on other grounds by In re
N.E., 909 N.E.2d 102, 106 (Ind. 2012). In making its conclusion about J.M.’s best
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interests, the court observed that “[i]t is undisputed that children require secure, stable,
long-term continuous relationships with their parents or foster parents. There is little that
can be as detrimental to a child’s sound development as uncertainty.” Appellant’s App. at
137 (quoting Baker v. Marion Cnty. Office of Family & Children, 810 N.E.2d 1035, 1040
(Ind. 2004)). The court then noted the uncertainty in the present matter, pointing to
uncertainty as to Mother’s prospects of achieving enough stability to care for J.M. and
also as to whether Father, upon being released from incarceration, would develop the
bond with J.M. necessary to raise a healthy child and would participate in the services
necessary to keep J.M. safe. Although Father testified that termination is not in J.M.’s
best interests because Father deserved an opportunity to parent J.M., the trial court
recognized that, again, termination of parental rights is not to punish the parents, it is to
protect the child. S.P.H., 806 N.E.2d at 880. Ultimately, the evidence was sufficient to
support the trial court’s conclusion that termination was in J.M.’s best interests.
Last, Mother and Father claim that the juvenile court erroneously concluded that
DCS had set forth a satisfactory plan for J.M. under (b)(2)(D). See Ind. Code § 31-35-2-
4(b)(2)(D). Here, the plan was adoption. Indeed, J.M.’s foster parents had indicated that,
in the event the parental rights of Mother and Father were terminated, they would take
steps to adopt J.M. We have noted that a satisfactory plan “need not be detailed, so long
as it offers a general sense of the direction in which the child will be going after the
parent-child relationship is terminated.” In re D.D., 804 N.E.2d at 268. Furthermore,
“[a]ttempting to find suitable parents to adopt the chil[d] is clearly a satisfactory plan.”
Lang, 861 N.E.2d at 375. Thus, the court did not commit clear error in concluding that
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adoption was a satisfactory plan for J.M.
In sum, we find that the record clearly and convincingly supports the court’s order
terminating the parental rights of Mother and Father.
Affirmed.
ROBB, C.J., and RILEY, J., concur.
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