In the Matter of the Termination of the Parent-Child Relationship of L.B. and J.B., W.B. 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 May 27 2014, 10:05 am
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:
GILDA W. CAVINESS GREGORY F. ZOELLER
Caviness Law Office, LLC Attorney General of Indiana
Rushville, Indiana
ROBERT J. HENKE
Deputy Attorney General
Indianapolis, Indiana
DAVID E. COREY
Indiana Department of Child Services
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF L.B. )
AND J.B., )
)
W.B., )
)
Appellant-Respondent, )
)
vs. ) No. 73A04-1310-JT-545
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Jack A. Tandy, Judge
Cause Nos. 73D01-1306-JT-1 and 73D01-1306-JT-2
May 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
W.B. (“Father”) appeals the trial court’s termination of his parental rights over his
minor children L.B. and J.B. (“the children”). Father raises a single issue for our review,
namely, whether the Indiana Department of Child Services (“DCS”) presented sufficient
evidence to support termination of his parental rights.
We affirm.1
FACTS AND PROCEDURAL HISTORY
Father and E.B. (“Mother”) (collectively “Parents”) were married and had three
children together, namely, D.B., birthdate unknown; L.B., born August 13, 2005; and
J.B., born October 26, 2009. In April 2007, L.B. was declared to be a child in need of
services (“CHINS”), and in December 2008 a trial court terminated Parents’ parental
rights with respect to D.B. On July 26, 2012, after DCS found Parents’ home to be
unsanitary, the trial court found L.B. and J.B. to be CHINS, and both children were
removed from Parents’ custody in September.
The trial court entered a dispositional decree and ordered Parents to participate in
services including home-based services. The trial court also ordered Parents to maintain
suitable, safe, and stable housing with adequate bedding, functional utilities, adequate
supplies of food and food preparation facilities, and to keep the residence in a manner
that is sanitary, clean, free from clutter, and safe for the children. In July 2012, Marsha
Fisher, a parent aide with Fountain Consultants, began working with Parents in their
home, and Fisher found the residence to be “filthy with trash, roaches, feces, and an
1
The children’s mother has executed consents for the children to be adopted and, therefore, does
not participate in this appeal.
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overwhelming stench.” Appellant’s App. at 36. Father refused to work with Fisher and
threatened her with an “ass whipping.” Id.
Because of Father’s threats, Rick Morphew of Fountain Consulting began
assisting Fisher with home visits and efforts to teach Parents how to clean and maintain
their home. Fisher and Morphew worked with Mother to remove trash from the home,
but Father refused to participate and claimed that cleaning was “women’s work.” Id. at
37. Fisher and Morphew also discovered that Parents were removing some of the trash
from the dumpster after Fisher and Morphew had disposed of it. In September 2012,
Father stated, “I’ll get my kids back, kill DCS and kill that bitch that turned us in.” Id. at
36. Father displayed other inappropriate behavior. For instance, one time when J.B. was
visiting, he pulled his shirt up over his stomach, and Father yelled, “put your shirt down
and quit showing your mother****ing tits.” Id. at 37. In May 2013, Father and Mother
divorced. And in June 2013, Father ceased his aggressive behavior toward Morphew, but
Father continued to be “unwilling to change his parenting techniques.” Id. After his
divorce from Mother, Father moved in with a girlfriend and her adult autistic son in a
two-bedroom apartment in Westport.
In June 2013, Mother agreed to voluntarily terminate her parental rights to the
children. And following a factfinding hearing, the trial court terminated Father’s parental
rights to the children. This appeal ensued.
DISCUSSION AND DECISION
We begin our review of this appeal by acknowledging that “[t]he traditional right
of parents to establish a home and raise their children is protected by the Fourteenth
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Amendment of the United States Constitution.” Bailey v. Tippecanoe Div. of Family &
Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a
trial court must subordinate the interests of the parents to those of the child when
evaluating the circumstances surrounding a termination. Schultz v. Porter Cnty. Ofc. of
Family & Children (In re K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination
of a parent-child relationship is proper where a child’s emotional and physical
development is threatened. Id. 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. Id. at 836.
Before an involuntary termination of parental rights can occur in Indiana, DCS 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.
***
(C) [and] that termination is in the best interests of the child . . . .
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Ind. Code § 31-35-2-4(b)(2).2 That statute provides that DCS need establish only one of
the requirements of subsection (b)(2)(B) before the trial court may terminate parental
rights. DCS’s “burden of proof in termination of parental rights cases is one of ‘clear and
convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257,
1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).
When reviewing a termination of parental rights, we will not reweigh the evidence
or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of Family &
Children (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. Judy S. v. Noble Cnty. Ofc. of Family & Children (In re
L.S.), 717 N.E.2d 204, 208 (Ind. Ct. App. 1999). trans. denied.
Here, in terminating Father’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment contains special
findings and conclusions, we apply a two-tiered standard of review. Bester v. Lake Cnty.
Ofc. 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
2
Indiana Code Section 31-35-2-4(b)(2)(B) also allows DCS to allege that “[t]he child has, on
two (2) separate occasions, been adjudicated a child in need of services.” But that additional, alternative
provision is not relevant here.
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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.
Father does not challenge the trial court’s findings of fact in its order terminating
his parental rights. Rather, Father challenges only the court’s legal conclusions that, on
these facts, termination of his parental rights is justified because a continuation of the
parent-child relationships poses a threat to the children’s well-being; termination is in the
children’s best interests; and the DCS has a satisfactory plan for the children’s care and
treatment.3 We address each issue in turn.
Children’s Well-Being
Father first contends that “DCS failed to prove that the conditions that led to the
children’s removal would not be remedied or that continuation of the parent-child
relationship posed a threat to J.B.’s well-being.”4 Appellant’s Brief at 5. But Father’s
argument focuses solely on the conditions that led to the children’s removal. Father
makes no cogent argument to support his contention that the evidence is insufficient to
prove that continuation of the parent-child relationship posed a threat to J.B.’s well-
being. Accordingly, the issue is waived.
Waiver notwithstanding, a trial court need not wait until a child is irreversibly
influenced by a deficient lifestyle such that his physical, mental, and social growth is
permanently impaired before terminating the parent-child relationship. Shupperd v.
3
Father also contends that the DCS did not prove that Father will not remedy the conditions that
resulted in the children’s removal, but we need not consider that argument given the disjunctive nature of
Indiana Code Section 31-35-2-4(b)(2)(B) and our holding that the trial court’s conclusion is justified
under subsection (b)(2)(B)(ii).
4
Father does not challenge the sufficiency of the evidence on this element with respect to L.B.
6
Miami Cnty. Div. of Family & Children (In re E.S.), 762 N.E.2d 1287, 1290 (Ind. Ct.
App. 2002). When the evidence shows that the emotional and physical development of a
child in need of services is threatened, termination of the parent-child relationship is
appropriate. Id.The evidence supports the trial court’s conclusion that the continuation of the
parent-child relationship would pose a threat to J.B.’s well-being. Michael Johnson, the
Court Appointed Special Advocate (“CASA”) testified that he had made approximately a
dozen visits to Parents’ home over the course of a year and had also visited separately
with the children. Johnson testified that Parents’ home was “no place for human
habitation.” Transcript at 77. Johnson also testified that: J.B. may not have “any
memory” of Father or Mother given his young age; J.B. has “really bonded well with his
new mother” and is improving in thought processes and speech; and for L.B. to be placed
with Father “would just be devastating to him physically, psychologically and it would
just continue the cycle.” Id. at 77-78. Johnson concluded that “the best thing that we can
do for both these kids is to stop that cycle. This is a great opportunity for them to go
through this door with these new adoptive parents and begin a whole new life away from
[Father]. And I just can’t say that strongly enough.” Id. at 78.
Father’s contentions on this issue amount to a request that we reweigh the
evidence, which we will not do. Again, Father does not challenge any of the trial court’s
findings on appeal. Father has not demonstrated that the trial court’s conclusion that
continuation of the parent-child relationship poses a threat to J.B.’s well-being is clearly
erroneous. Accordingly, we agree with the trial court that the termination of Father’s
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parental rights over the children was appropriate under Indiana Code Section 35-35-2-
4(b)(2)(B)(ii).
Best Interests
Father also contends that termination is not in the children’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 A.K., 924 N.E.2d 212,
224 (Ind. Ct. App. 2010). “A parent’s historical inability to provide adequate housing,
stability and supervision coupled with a current inability to provide the same will support
a finding that termination of the parent-child relationship is in the child’s best interests.”
Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006),
trans. denied. “Additionally, a child’s need for permanency is an important consideration
in determining the best interests of a child, and the testimony of the service providers
may support a finding that termination is in the child’s best interests.” In re A.K., 924
N.E.2d at 224.
Father does not support his contention on this issue with cogent argument, and the
issue is waived. Waiver notwithstanding, the totality of the evidence supports the trial
court’s conclusion that termination is in the children’s best interests, including the
CASA’s testimony that termination is in the children’s best interests. Again, Father’s
contention on this issue amounts to a request that we reweigh the evidence, which we will
not do.
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Satisfactory Plan
Finally, Father contends that DCS “failed to prove that there is a satisfactory plan
for the children’s care and treatment.” Appellant’s Brief at 6. In particular, Father
asserts that “there was no evidence that the current foster parents planned to adopt L.B. or
J.B.” Id. But Father ignores the following testimony given by Family Case Manager
Mary Clark:
Q: And if you could just explain to the judge, I guess [the difference]
between a regular foster home and a pre-adoptive foster home?
A: A pre-adoptive foster home is a family that is not only looking to
foster the children during the life of the case but also would have
plans to adopt them if that need should arise.
Q: So should the termination of parental rights happen the children are
in a home that is pre-adoptive?
A: Correct.
Q: So therefore they would not have to be moved to another home?
A: No.
***
Q: What is the plan for [the children] . . . should the judge terminate the
parental rights of [Father]?
A: The plan is adoption.
Q: And it would be in, by the foster parents where the children are
placed now?
A: Yes.
Transcript at 55-56.
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In order for the trial court to terminate the parent-child relationship, the court must
find that there is a satisfactory plan for the care and treatment of the child. In re S.L.H.S.,
885 N.E.2d 603, 618 (Ind. Ct. App. 2008). This 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. Id. Here, the evidence is sufficient to support the trial
court’s conclusion that DCS has a satisfactory plan for the care and treatment of the
children, namely, adoption. See id.Affirmed.
VAIDIK, C.J., and BROWN, J., concur.
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