Term. of the Parent-Child Rel. of B.W., Minor Child R.C., Father v. Indiana Dept. of Child Services ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not FILED
be regarded as precedent or cited Dec 21 2012, 9:06 am
before any court except for the
purpose of establishing the defense of CLERK
of the supreme court,
res judicata, collateral estoppel, or the court of appeals and
tax court
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL T. DOUGLASS CHERRIE WELLS
Fort Wayne, Indiana DCS, Allen County Office
Fort Wayne, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
B.W., Minor Child, )
)
R.C., Father, )
)
Appellant-Respondent, )
)
vs. ) No. 02A03-1204-JT-173
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Charles F. Pratt, Judge
Cause No. 02D08-1107-JT-112
December 21, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
R.C. (“Father”) appeals the involuntary termination of his parental rights to his
child, B.W. Concluding that there is sufficient evidence to support the trial court’s
judgment, we affirm.
Facts and Procedural History
Father is the biological father of B.W., born in October 1999. The evidence most
favorable to the trial court’s judgment reveals that in February 2010 B.W.’s biological
mother, V.W. (“Mother”), was incarcerated, with an earliest projected release date
sometime in 2014. Because Father was unemployed, without stable housing, and serving
parole, Father’s mother, R.S. (“Grandmother”), agreed to temporarily care for B.W. and
his older brother.1 By August 2010, however, Grandmother felt she could no longer
afford to care for B.W. and requested help from the local Allen County office of the
Indiana Department of Child Services (“ACDCS”).
Later the same month, ACDCS filed a petition alleging B.W. was a child in need
of services (“CHINS”). Father admitted to the allegations of the CHINS petition and
B.W. was so adjudicated. The court proceeded to disposition the same day, formally
removed B.W. from Father’s custody, and ordered that the child be made a ward of
ACDCS. The court’s dispositional order also incorporated a Parent Participation Plan
which directed Father to successfully complete a variety of tasks and services designed to
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Father has several additional children not subject to this appeal. Father’s daughters, E.W. and
C.W., were placed in a guardianship with their paternal Great Aunt at approximately the same time B.W.
and his brother began living with Grandmother. B.W.’s older brother was also adjudicated a CHINS, but
he was placed in a planned permanent living arrangement during the pendency of the underlying
proceedings. Mother voluntarily relinquished her parental rights to B.W. at the commencement of the
termination hearing and does not participate in this appeal. We therefore limit our recitation of the facts
to those facts pertinent solely to Father’s appeal of the termination of his parental rights to B.W.
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address his parenting deficiencies and to facilitate reunification with B.W. Specifically,
Father was ordered to, among other things: (1) refrain from all criminal activities, submit
to random drug screens, and obey the terms of his parole; (2) secure and maintain a stable
source of income sufficient to provide the child with clean, suitable housing and clothing;
(3) participate in and successfully complete family counseling; (4) participate in a Family
Support Conference; and (5) cooperate with all caseworkers as directed, maintain contact
with ACDCS, and accept all announced and unannounced home visits. Father was also
granted unrestricted, unsupervised visitation privileges with B.W.
Father’s participation in court-ordered reunification services was sporadic from
the beginning of the CHINS case and ultimately unsuccessful. Father attended the
Family Support Conference, but he refused to engage in family counseling by failing to
appear for the first scheduled appointment in February 2011 and then failing to contact
the service provider to reschedule until November 2011. Father also failed to secure
stable housing, preferring instead to bounce between living with Grandmother and his
girlfriend. Although Father attended several of B.W.’s football games and one or two
family gatherings, Father failed to visit specifically with B.W. on a regular basis even
though the foster parent informed Father that he could have unlimited access to B.W. In
2011, Father participated in only two visits with B.W.
ACDCS eventually filed a petition seeking the involuntary termination of Father’s
parental rights to B.W. in July 2011. An evidentiary hearing on the termination petition
was held in January 2012. During the termination hearing, ACDCS presented substantial
evidence establishing Father had failed to remedy the conditions that necessitated
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removal and continued placement of B.W. outside Father’s care. In addition, it was the
general consensus of case workers and service providers that Father remained incapable
of providing B.W. with a safe and stable home environment. As for the child, ACDCS
presented evidence showing B.W. was happy and thriving in foster care.
At the conclusion of the termination hearing, the trial court took the matter under
advisement. In March 2012, the court entered its judgment terminating Father’s parental
rights to B.W. Father now appeals.
Discussion and Decision
When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Bester v. Lake Cnty. Office of Family
& Children, 839 N.E.2d 143, 147 (Ind. 2005). Instead, we consider only the evidence
and reasonable inferences that are most favorable to the judgment. Id. When, as here,
the trial court makes specific findings of fact and conclusions thereon, we apply a two-
tiered standard of review. First, we determine whether the evidence supports the
findings, and second, we determine whether the findings support the judgment. Id. 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), trans. denied; see also Bester, 839
N.E.2d at 147. Thus, if the evidence and inferences support the trial court’s decision, we
must affirm. Id.
“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.,
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666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. Although parental rights are of a
constitutional dimension, the law provides for the termination of these rights when
parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892
N.E.2d 144, 149 (Ind. Ct. App. 2008). Moreover, a trial court need not wait until a child
is irreversibly harmed before terminating the parent-child relationship. McBride v.
Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).
Before parental rights may be involuntarily terminated in Indiana, the State is
required to allege and prove, among other things:
(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 . . . .
Ind. Code § 31-35-2-4(b)(2).2 The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y.,
904 N.E.2d 1257, 1260-1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). “[I]f
the court finds that the allegations in a petition described in section 4 of this chapter are
2
We observe that Indiana Code section 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff.
July 1, 2012). The changes to the statute became effective after the filing of the termination petition
involved herein and are not applicable to this case.
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true, the court shall terminate the parent-child relationship.” Ind. Code § 31-35-2-8(a)
(emphasis added). Father challenges the sufficiency of the evidence supporting the trial
court’s findings as to subsection (b)(2)(B) and (C) of the termination statute cited above.
We shall address each argument in turn.
I. Conditions Remedied/Threat to Well-Being
Indiana Code § 31-35-2-4(b)(2)(B) requires the State to establish, by clear and
convincing evidence, only one of the three requirements of subsection (b)(2)(B).
Because we find it to be dispositive, we limit our review to Father’s allegations of error
pertaining to subsection (b)(2)(B)(i) of Indiana’s termination statute, namely, whether
ACDCS presented clear and convincing evidence establishing that there is a reasonable
probability the conditions leading to the removal and continued placement of B.W.
outside Father’s care will not be remedied. On appeal, Father argues that the efforts he
made in inquiring about family counseling and in obtaining stable and suitable housing
were “reasonable.” Appellant’s Brief at 15-16. Father therefore contends the trial court
erred in terminating his parental rights.
In terminating Father’s parental rights to B.W., the trial court made several
detailed findings regarding Father’s history of deficient parenting, housing and income
instability, and failure to complete and/or benefit from the court-ordered reunification
services. Specifically, the trial court acknowledged that Father failed to “maintain
contact with [ACDCS] and had not demonstrated an ability to benefit from services.”
Appellant’s Appendix at 25. Regarding Father’s housing instability, the trial court
specifically found “Father acknowledges that he cannot allow [B.W.] to reside with him
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at either” the Grandmother’s or girlfriend’s house, that he “does not believe he has
sufficient financial resources to independently provide a home for him[self] and his son,”
and he is “not currently able to provide his son with a place to live.” Id. at 26.
As for Father’s failure to visit with B.W., the trial court specifically found that
Father was “reminded at a Family Team Meeting that he needed to regularly visit with
the child and to secure suitable housing;” however, Father had “only personally visited
with [B.W.] on two (2) occasions since the summer of 2011.” Id. The court further
found: (1) it had been “several months” since Father last visited with B.W. at the time of
the termination hearing; (2) Father had failed to visit with B.W. on his birthday and
Christmas; and (3) despite the fact there had been “no restrictions on Father’s visits” and
the foster mother was willing to transport B.W. to Father’s home for visits, Father “never
made that request.” Id.
The court also made several findings pertaining to Father’s refusal to engage in
family counseling and the Fatherhood Engagement Program. In so doing, the court noted
that a referral for family counseling was made in December 2010, that Father was
“unavailable” for the “first offered appointment” in January 2011, and that Father “failed
to appear for later appointments[,] and the referral was closed.” Id. at 27. Although the
court acknowledged that Father contacted the provider in November 2011 to inquire
about family counseling, the court also pointed out that Father remained on the waiting
list at the time of the termination hearing. As for Father’s participation in the Fatherhood
Engagement Program, which was recommended to assist Father in developing a bond
with B.W. and to help address his transportation issues, the court noted that Father
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attended one session in November 2011 and thereafter failed to participate any further in
the program.
Based on these and other findings, the trial court concluded that there is a
reasonable probability the reasons for B.W.’s removal from Father’s care will not be
remedied, stating:
Father has an historic pattern of placing the responsibility for the care of his
children on others. Two daughters, following a CHINS adjudication, were
placed with his aunt. He does not financially contribute to their support.
His sons, the child in this case and his brother, were first placed in the care
of [Grandmother]. She testified that she knew he could not financially
support them and did not ask for his help. Within a few months, she asked
[ACDCS] to take the boys because she was unable to maintain them in her
care. Thereafter, Father found the resources to pay [Grandmother] three
hundred dollars ($300.00) per month so that he could live part[-]time in her
house. The Father does not disagree with his girlfriend or [Grandmother’s]
refusal to accept the child into their homes notwithstanding the fact that he
is paying each substantial sums of money each month toward housing costs.
The Father has not cooperated with services to assist him with
transportation and he has not completed family counseling as ordered. At
the time evidence was closed. The child had been in foster care for over a
year and the Father was still unable to provide for his care. The reasons for
the child’s removal continue to exist today and, given the Father’s historic
pattern, are unlikely to be remedied.
Id. at 28. A thorough review of the record reveals that clear and convincing evidence
supports the trial court’s findings and conclusions detailed above.
In recommending termination of Father’s parental rights, ACDCS case manager
Marie Kidd informed the trial court that Father had never been employed during the
underlying proceedings, was complicit in denying ACDCS access to both his girlfriend’s
and Grandmother’s home, was “noncomplian[t]” with visitation despite having been
given “full opportunity to spend time with B.W.,” and failed to take the CHINS case
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“serious[ly].” Transcript at 196, 199. When asked what factors led ACDCS to finally
seek termination of parental rights, Kidd explained, “[Father] wasn’t doing what he
needed to do. And he hadn’t had any regular visitation with his own son throughout
pretty much the whole entire case, since August 2010.” Id. at 200. We have previously
explained that the “failure to exercise the right to visit one’s children demonstrates a lack
of commitment to complete the actions necessary to preserve [the] parent child
relationship.” Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 372
(Ind. Ct. App. 2007) (quotations omitted), trans. denied.
Family and Children Services’ Intake Clinician Laura Vojtush likewise testified
during the termination hearing. Vojtush confirmed that Father declined the first available
family counseling appointment offered in January 2011 and subsequently failed to show
for a scheduled appointment in February 2011. Vojtush went on to explain that Father
thereafter delayed in initiating any contact with her office for approximately nine months,
until November 2011, but by then the referral for services had expired. Notwithstanding
Father’s failure to contact ACDCS in November 2011 and to request that the counseling
referral be renewed, case manager Kidd learned of Father’s renewed interest in family
counseling during a follow-up conversation with Vojtush and renewed Father’s referral
on her own initiative. Father remained on the waiting list at the time of the termination
hearing.
Father’s own testimony lends further support to the trial court’s findings. During
the termination hearing, Father confirmed that he receives six hundred ninety-eight
dollars ($698.00) per month in “disability income,” but that he pays Grandmother and his
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girlfriend a total of approximately six hundred and fifty dollars ($650.00) per month in
rent. Transcript at 148. Father further testified that although he had applied for “Section
8 housing” approximately two years earlier and was currently number sixty-eight on the
wait list (down from 2000), he remained uncertain as to whether he would be able to
support B.W. even with the housing assistance but would “give it a shot.” Id. at 143-144.
As for family counseling and visitation with B.W., Father insisted that he “didn’t
need to go to no (sic) counseling,” that he was “strongly against it from the beginning”
and that he felt it would be a “waste of my time.” Id. at 131-132. Although Father
acknowledged that he had been repeatedly told that he could and should visit with B.W.,
when asked why he failed to do so, Father answered: “[T]o be honest, I really don’t have
no excuses.” Id. at 145.
As noted above, a trial court must judge a parent’s fitness to care for his or her
child at the time of the termination hearing, taking into consideration the parent’s
habitual patterns of conduct to determine the probability of future neglect or deprivation
of the child. In re D.D., 804 N.E.2d 258, 266 (Ind. Ct. App. 2004), trans. denied. Where
a parent’s “pattern of conduct shows no overall progress, the court might reasonably find
that under the circumstances, the problematic situation will not improve.” In re A.H.,
832 N.E.2d 563, 570 (Ind. Ct. App. 2005). After reviewing the record in its entirety, we
conclude that clear and convincing evidence supports the trial court’s specific findings set
forth above. These findings, in turn, provide ample evidence to support the court’s
ultimate decision to terminate Father’s parental rights to B.W. Father’s arguments to the
contrary, emphasizing his self-serving testimony, rather than the evidence cited by the
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trial court in its termination order, amount to an impermissible invitation to reweigh the
evidence. See D.D., 804 N.E.2d at 265.
II. Best Interests
We next consider Father’s assertion that ACDCS failed to prove termination of his
parental rights is in B.W.’s best interests. In determining what is in the best interests of a
child, the trial court is required to look beyond the factors identified by the Indiana
Department of Child Services and look to the totality of the evidence. McBride, 798
N.E.2d at 203. In so doing, the court must subordinate the interests of the parent to those
of the child. Id. The court need not wait until a child is irreversibly harmed before
terminating the parent-child relationship. Id. Moreover, we have previously held that the
recommendations by both the case manager and child 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. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).
In addition to the findings previously cited, the trial court made several additional
pertinent findings relating to B.W.’s best interests. Although the trial court specifically
noted that B.W. loves Father, the court nevertheless acknowledged Guardian Ad Litem
(“GAL”) Michael Harmeyer’s testimony recommending termination of Father’s parental
rights as in B.W.’s best interests, including the GAL’s specific testimony that Father is
not able to financially support B.W., not able to secure housing for the child, has physical
and mental health limitations, and has failed to regularly visit with B.W. The court went
on to conclude that “[n]either parent can provide for the child at this time,” and that
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through termination of parental rights, B.W. can be “placed for adoption and can be given
a safe and sustainable home.” Appellant’s Appendix at 28. Based on these and other
findings, the trial court concluded that termination of Father’s parental rights is in B.W.’s
best interests. These findings and conclusion, too, are supported by the evidence.
During the termination hearing, GAL Harmeyer testified that Father had “a
significant number of issues or challenges in his life . . . which I think are fairly
significant.” Transcript at 221. GAL Harmeyer also informed the trial court that
“[b]eyond the economic and financial issues” were the “housing and stability” issues, as
Father had been without independent housing for several years and was “now reliant on
his own parents who appear to be of advanced age and frail health themselves,” as well as
the “generosity of a girlfriend.” Id. at 222. GAL Harmeyer expressed additional concern
regarding Father’s “relatively profound health issues” including Father’s “significant
problems controlling blood sugar levels and high blood pressure.” Id. To that end,
Father’s own testimony confirmed that despite medication, his blood pressure was “not
under control” and that his doctor had described him as a “walkin (sic) time bomb.” Id.
at 133.
In recommending termination of Father’s parental rights as in B.W.’s best
interests, GAL Harmeyer testified: “[W]hen you add all of those dynamics up . . . what I
see is a father who is simply not able to raise B.W. as a single parent. . . . [T]he
challenges that [Father] faces as I see them are too significant both in number and in
terms of severity . . . and he just doesn’t have enough left over for his son.” Id. at 223.
Similarly, when asked why she recommended termination of Father’s parental rights as in
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B.W.’s best interests, case manager Kidd answered, “B.W., he’s such a good kid. He is,
and he deserves to have either one supportive loving parent or two (2) supporting loving
parents that want a child and want to be a part of their [sic] life.” Id. at 202. When asked
whether Father could provide that type of environment for B.W., Kidd answered “no.”
Id.
Based on the totality of the evidence, including Father’s unresolved struggle with
housing and financial instability, failure to visit with B.W., and failure to meaningfully
engage in reunification services throughout the underlying proceedings, coupled with the
testimony from case manager Kidd and GAL Harmeyer recommending termination of the
parent-child relationship, we conclude that there is sufficient evidence to support the trial
court’s determination that termination of Father’s parental rights is in B.W.’s best
interests. See, e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (testimony of
court-appointed advocate and family case manager, coupled with evidence that
conditions resulting in continued placement outside home will not be remedied, is
sufficient to prove by clear and convincing evidence termination is in child’s best
interests), trans. denied.
This court will 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.’” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly
v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find
no such error here.
Affirmed.
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FRIEDLANDER, J., and PYLE, J., concur.
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