In the Matter of the Termination of Parent-Child Relationship of R.E. and D.E. 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 Jul 09 2013, 6:30 am
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:
NANCY A. MCCASLIN SERGIO A. LOPEZ
McCaslin & McCaslin Indiana Department of Child Services
Elkhart, Indiana Elkhart, Indiaan
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION )
OF PARENT-CHILD RELATIONSHIP OF )
R.E. (Minor Child), )
)
and )
)
D.E. (Father), )
)
Appellant-Respondent, ) No. 20A05-1209-JT-469
)
vs. )
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
The Honorable Deborah A. Domine, Magistrate
Cause No. 20C01-1203-JT-8
July 9, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
D.E. (“Father”) appeals the involuntary termination of his parental rights to his
child, R.E. (“Son”). Father raises the following restated issues: (1) whether there is
sufficient evidence supporting the trial court’s judgment terminating Father’s parental
rights; (2) whether termination of Father’s parental rights are in the best interests of Son;
(3) whether there is a satisfactory plan for the care and treatment of Son.
We affirm.
Facts and Procedural History
The facts most favorable to the juvenile court’s judgment reveal that on March 15,
2010 the Elkhart County Department of Child Services (“ECDCS”) received a report
regarding Son. On the evening of March 12, 2010, Father arrived, inebriated, at his
sister’s (“Aunt’s”) home where Father and Son were also living. Aunt, Son and his four
cousins were present when Father arrived. Aunt locked the door to keep Father out.
Father kicked down the door and forced his way into the home to get Son. Cousin One,
seventeen years old, tried to stop Father from taking Son. Father began hitting Cousin
One. During this time, Father struck Son in the eye. Father only stopped hitting Cousin
One when Cousin Two hit Father in the back of the head with a hammer. At the time of
the incident, Son was ten years old.
Prior to this incident, between 2007 and 2010, Father and Son lived together in
Alaska. Son lived with K.H. (“Mother”) in Alaska for most of his early life. Father did
not meet Son until he was five years old. Tr. p. 371. Son was brutally abused by Mother
and Grandmother. He was placed in a psychiatric hospital at age five, and diagnosed
2
with Post Traumatic Stress Disorder (“PTSD”). Tr. pp. 225 and 369. Father was
contacted about Son for the first time in 2005. At the time, Father was living in North
Carolina. Tr. p. 370, but he immediately left for Alaska. After waging a legal battle for
two years, he finally won custody of Son, and they lived together in Anchorage until
2010. After being the victims of a burglary, Father determined Anchorage was no longer
safe for Son. Father and Son moved into Aunt’s home in Goshen, Indiana.
When Father and Son returned to Elkhart County to live with Aunt, Father knew
that he had an outstanding warrant for probation violation in nearby Kosciusko county.
Tr. p. 373. Father gave Aunt money to care for Son and turned himself in to answer for
the underlying probation violation. The March 12 incident at issue occurred
approximately three weeks after Father and Son moved in with Aunt, and sadly, it was
not the only incident. Within the two week period following the March 12 incident,
Father and Aunt’s mother, who was still living in Alaska at that time, called law
enforcement officers to Aunt’s home five different times. Aunt’s landlord sought to meet
with her to discuss both the March 12 incident and the repeated law enforcement
interventions that followed. Because Aunt could not jeopardize her living arrangements
with her own children, she could not keep Son.
On March 23, 2010, ECDCS filed a request for an emergency order to remove Son
from the home. The order was granted, and Son was placed in therapeutic foster care.
Larry Mast, a Court Appointed Special Advocate (“CASA”), was appointed on March
25, 2010. Father’s public defender, Michelle McCuen, (“PD”) filed an appearance on
March 26, 2010. Father was incarcerated at the time of the April 1, 2010 initial hearing,
but he appeared at the hearing with counsel. After Father entered a qualified admission
3
of the allegations, the juvenile court adjudicated Son as a Child in Need of Services
(“CHINS”) and set a disposition hearing for April 29, 2010.
Prior to the disposition hearing, Dr. Joseph Cresci of Benchmark Family Services
met with Son for a psychiatric evaluation. Dr. Cresci diagnosed Son with Relational
Attachment Disorder (“RAD”), Post-Traumatic Stress Disorder (“PTSD”), and Mood
Disorder with Psychosis. Appellant’s App. p. 51.
Father appeared with counsel at the April 29, 2010 dispositional hearing. The
court accepted ECDCS’s Predispositional Report recommendations. The court ordered
Father to:
• Participate in AA meetings
• Participate in drug/alcohol assessment
• Participate in parenting classes
• Participate in GED classes
• Correspond with Son at the discretion of Son’s therapist
Appellant’s App. p. 62. The Six-Month Periodic Case Review Hearing was set for
September 16, 2010.
ECDCS submitted a progress report on July 26, 2010. The progress report
indicated that Father was participating in an alcohol and drug assessment. Father was
incarcerated, so he could not visit with Son. However, Father did send letters to Son.
ECDCS submitted a second progress report on September 2, 2010 indicating that
Father was participating in AA/NA classes and parenting classes while incarcerated.
Father wrote frequent letters to Cindi Schnitz, later Cindi Callan, the Family Case
Manager, (“Family Case Manager”). His letters provided updates about both his class
participation and his legal issues. Appellant’s App. p. 76.
4
Father appeared with counsel at the September 16, 2010 periodic case review
hearing. The court noted that Father had thus far complied with the child’s case plan and
had enhanced his ability to fulfill his parental obligations. The court ordered Son to
remain in therapeutic foster care. The court set the Permanency Hearing for March 10,
2011.
Between September 2010 and February 2011, Father was released from jail, and
he began having supervised visitation with Son. Before and after these visitations, Son’s
behavior deteriorated significantly. Son struggled with his behavior at home, at school,
and during after-school care. Son punched himself in the face, pulled his own hair, called
himself “stupid,” and acted physically aggressive toward others. Appellant’s App. p. 85.
Son also disclosed that he had been physically abused by Father in the past. On February
7, 2011, ECDCS submitted a motion to modify the dispositional decree requesting that all
contact between Father and Son be suspended until Son stabilized and that Father
undergo a “psycho-parenting” assessment. On February 17, 2011, the court entered a
modification order to the dispositional decree ordering Father to:
• Complete a “Psycho-Parenting” Assessment and follow the
recommendations
• Suspend visitation until the therapist recommends that they resume
• Pay $20 a week in child support
• Participate in individual therapy
• Notify ECDCS of arrest or criminal charges
• Sign a release of information
Appellant’s App. p. 88.
The February 28, 2011 ECDCS Permanency Progress Report noted that Son was,
“a little behind his peers socially, emotionally and educationally.” Appellant’s App. p.
5
91. Son was further diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”),
Anxiety, and enuresis.1 The report noted that Father was working to maintain a home and
had participated in supervised visitation until it was suspended by the court. Father
missed only one visitation, due to a transportation issue. Father planned on participating
in individual therapy and family therapy. Father participated in Child and Family Team
Meetings. The report indicated that reunification was still the objective.
On March 10, 2011, Father appeared with counsel at the permanency and review
hearing. The court found Father to be compliant with the case plan. Appellant’s App. p.
96. The court approved a permanency plan of reunification. A Review Hearing was set
for September 1, 2011.
On June 22, 2011, Father requested a hearing to address visitation, and he attended
the hearing with counsel on June 30, 2011.2 On July 1, 2011, the court entered a
modification order finding that although Father was in compliance with services, Son was
still fragile. Even mentioning Father to Son, “is adverse to the child [Son] at this time
and caution is demanded.” Appellant’s App. p. 100. An Interim Review Hearing was
scheduled for August 4, 2011.
Father appeared with counsel at the August 4, 2011 Interim Review Hearing. The
court found that Father was engaged in treatment, but ordered a continuation of orders
and a release of information so Son’s therapist and Father’s therapist could communicate.
The August 16, 2011, the ECDCS progress report revealed that Son’s behavior was
1
Also known as uncontrolled urnination.
2
During this hearing the magistrate said on record, “if a petition to terminate parental rights is
filed, I can set it out for six months, I don’t have to set it tomorrow, so, it doesn’t mean it’s the end of the-
the road. It simply means they’re going through the motions and I can go through the motions too.” Tr.
pp 103-04. However, the record did not reflect that ECDCS filed a termination petition during the
summer of 2011.
6
showing some improvement. He was attending therapy once a week, and both Father and
Son were working independently toward family therapy with their individual therapists.
Appellant’s App. p. 104. The report further noted that Father participated in a drug and
alcohol assessment and individual therapy. He had maintained a home since his
incarceration ended and been in contact with the Family Case Manager. Father also
reported participating in AA meetings.
Father and counsel attended the September 1, 2011 Review Hearing. The court
order found that Father had complied with Son’s case plan, however, therapeutic foster
care was still the best placement for Son. The court ordered another Permanency Hearing
on February 23, 2012. Due to scheduling conflicts, the court changed this date to
February 16, 2012.
On February 1, 2012, ECDCS filed a Permanency Progress Report finding that
Son still suffered from PTSD, ADHD, anxiety, depression, and enuresis. Son had verbal
temper tantrums on a weekly basis, and he spat on and scared his foster siblings. Son felt
safe in his current placement but kept changing his mind about wanting to live with
Father. The report noted that Father “sporadically” participated in individual and family
therapy, attending only eight out of a possible twenty-two individual family therapy
sessions. Appellant’s App. p. 117. Father attended five out of a possible twenty
Batterer’s Intervention Program Group meetings. Father attended four family therapy
sessions between November 18, 2011 and February 1, 2012. Father cancelled two
sessions due to work and a sprained ankle, and the foster parents cancelled one due to a
7
faulty vehicle. Father owed $980 in child support. During this time, Father relocated to
Bourbon, Indiana with his girlfriend.3
Father appeared with counsel at the hearing on February 16, 2012. At that
hearing, the Case Manager disclosed that ECDCS had modified the plan to call for
termination of parental rights. When Father was asked about this change during the
hearing, he said that he did not agree with the change and that he would fight it. The court
approved the permanency plan and set the review hearing for August 9, 2012.
Throughout the late winter and early spring of 2012, Father attended family
therapy sessions with Son and Son’s therapist, Briana Yoder (“the Therapist”). Prior to
family therapy sessions, the Therapist met individually with Father. She warned him not
to discuss Son’s placement. Tr. p. 243. She also reminded Father that his emotional
responses were a trigger for Son’s adverse behavior. Tr. p. 243. She told him that during
therapy Father should try to listen to Son, and that they should work to understand each
other. Tr. pp. 239-240. The Therapist testified that even after these meetings, Father
spent significant time in family therapy focused on his own issues, and then lectured Son
about his poor behavior. Father often paced and yelled during these lectures.
Son continued to struggle with his behavior. His foster parent called the police to
the home on at least one occasion. His foster parent expressed concern for other children
in the home during Son’s outbursts. She requested that Son be placed elsewhere, but
agreed to keep him until other arrangements could be made. During phone conversations
3
We note that the Permanency Progress Report was, at best, sloppy. While Father was criticized
for attending only five out of twenty Batterer’s Intervention Program Group meetings, Father’s therapist,
Shelly Hoefle, testified that he was asked to attend ten meetings. Tr. p. 297. In addition Permanency
Progress Report recommend both reunification and termination of parental rights. Appellant’s App. pp.
114-15.
8
and during family therapy sessions, Father lectured Son on his behavior. More than once,
Father told Son that he might be institutionalized if he did not get his behavior under
control. Tr. p. 242. At least once, Father told Son that he might not be able to live with
Father because Father was concerned that Son was a threat to Father’s safety. Tr. p. 243.
Therapist testified that during the March 30 family therapy,
“[Father], again, told [Son] that he’s going to sign papers to have him put
away. [Father] said he received court papers- he told [Son] he’d received
court papers to take away his rights and then [Son]’s not ever going to see
his dad again, is that what you want. And he was not sitting down talking
about it, he was yelling at him. He told [Son] he really needed to turn this
around if reunification was going to happen. [Father] also told [Son] that
the upcoming court hearing was going to be focused completely on [Son]’s
lack of cooperation and nothing about [Father].”
Tr. p. 244. On March 28, 2012, ECDCS filed for involuntary termination of the parent-
child relationship.
On April 20, 2012, Father and Son participated in their final, explosive family
therapy session. As usual, Father met with the Therapist alone ahead of time. She gave
him an update. The Therapist said that Father seemed very angry. Father told the
Therapist he wanted to give Son his Easter basket and say goodbye to Son. Tr. p. 246.
This was not planned ahead of time.
Meanwhile, Son did not want to attend the session, telling Therapist that he was
afraid he was in trouble. After Therapist reassured him that he was not in trouble, the
session began. Within a couple of minutes Father began yelling. He told Son that they
had been “over and over this” and Son wasn’t doing what he was supposed to do, and
Father was “done.” Tr. p. 247. During this time, Father was pacing and yelling. He gave
Son the Easter basket and the poster that they had been working on during therapy. He
9
asked Son for a hug. Son got up, and Father gave him a “half-hug.” Then, Father left the
room; slamming the door behind him. Tr. p. 248. Later, people on the other side of the
building reported that they had heard the door slam. During the outburst, Son was quiet,
sullen, withdrawn, and trembling. He moved his chair closer to Therapist, and he was
sitting almost in a fetal position. Therapist further testified,
“[O]n April 20, in all the years that I have done this work, that was the most
explosive and traumatic and inappropriate type of behavior I have ever
seen. And this child was re-traumatized in front of my eyes. And now I
have this child, who’s telling me repeatedly over and over, I’m not safe to
go home because my dad is going to hurt me again and he’s getting ready
for his dad and he’s scared. I would-I would not recommend that we have
visitation and family therapy. That clinically, and ethically, that would be
extremely inappropriate and it could completely retraumatize him again.”
Tr. p. 266.
On May 1, 2012, ECDCS filed a motion to modify the dispositional decree,
recommending a suspension of family therapy. Also on May 1, 2012, ECDCS submitted
a Modification Report recommending the suspension of family therapy. Father and
counsel appeared at the May 3, 2012 modification hearing. The court ordered that family
therapy be temporarily suspended, and set the modification hearing for May 7, 2012.
Son met with Dr. Jeff Burnett (“Burnett”) for a psychological evaluation on April
12, April 25, and May 1, 2012. The evaluation indicated that Son continued to have
“blow ups,” but he had also started hitting his siblings and peers during outbursts.
Appellant’s App. p. 134. Burnett did not agree with Son’s RAD diagnosis, but did
believe that Son continued to struggle with ADHD and PTSD. Burnett’s report noted
that, “[Son’s] aggression appears to consistently go beyond the ability of a variety of
medications [to] control.” Appellant’s App. p. 141.
10
Father attended the May 7, 2012 modification hearing with counsel. During the
hearing, Father focused on himself and not the interests of Son. The court stated that
Father’s angry, defensive behavior was undermining Son’s progress. Father did not
attend Son’s Individual Education Plan (“IEP”) conference at his school, and Father told
the CASA that he refused to attend a second IEP meeting as well. The court ordered
family therapy and visitation suspended, and appointed the CASA as Son’s educational
surrogate. The court found that contact between Son and Father was detrimental to Son’s
well being. A Review Hearing was set for August 9, 2012.
On July 24, 2012, ECDCS submitted a progress report to the court. The report
indicated that Father had only paid $20 in child support in the sixteen month pendency of
the case. The report noted that Son was really struggling. He was having emotional and
physical outbursts frequently. Son’s foster mother requested that Son be removed from
her care, but Family Case Manager was not able to find a placement at the time of the
report. Appellant’s App. p. 151. Father attended the August 9, 2012 periodic review
hearing with counsel. The court found that while Father was compliant with his case
plan, he had not enhanced his ability to fulfill his parental obligations.
An evidentiary hearing was held on August 24, 2013. Father appeared with
counsel. At the time of the evidentiary hearing, Son had just turned thirteen years old.
Several professionals who had attempted to assist Father testified at this hearing. The
Family Case Manger testified that she could not recommend returning Son to Father
because he did not comply with court orders or follow through with service provider
11
recommendations.4 For example, she asserted that Father did not regularly attend AA
meetings and did not provide proof of completion of his GED. Tr. p. 325. The Family
Case Manager believed termination of parental rights was in the best interest of Son
because Son needed permanency.
The CASA testified that he could never recommend placing Son back with Father.
He believed it was in Son’s best interest to terminate the parent-child relationship
because returning Son to Father would cause risk to Son. Tr. p. 354. Son had also
repeatedly told the CASA that he was ready for a different family setting. The Therapist
testified that Son needed permanency and nurturing, consistent, responsible parents who
can separate their adult issues from Son’s issues. Tr. p. 254.
On August 31, 2012 the court issued an order terminating Father’s parental rights.
Father now appeals.
Discussion and Decision
We begin our review by acknowledging that when reviewing a termination of
parental rights, 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 juvenile 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.
4
It should also be noted that there were multiple contradictions in different reports submitted by
ECDCS to the court regarding the permanency plan for Son. In addition, at the Review Hearing on
August 9, 2012, a mere fifteen days before the evidentiary hearing, Family Case Manager testified that
Father was in compliance. Tr. p. 191. Father also did not complete a psycho-parenting assessment,
however, that was partially due to Family Case Manager’s lack of referral.
12
Where, as here, the juvenile court enters findings of fact and conclusions of law in
its termination of parental rights, our standard of review is two-tiered. In re J.H., 911
N.E.2d 69, 73 (Ind. Ct. App. 2009), trans. denied. First, we determine whether the
evidence supports the findings, and second, we determine whether the findings support
the judgment. In re C.G., 954 N.E.2d 910, 923 (Ind. 2011). “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 juvenile court’s decision, we must affirm. C.G., 954 N.E.2d at
923.
The Fourteenth Amendment to the United States Constitution protects the
traditional rights of parents to establish a home and raise their children. Id. However, a
juvenile court must subordinate the interests of the parents to those of the child when
evaluating the circumstances surrounding a request to terminate parental rights. In re
K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child
relationship is proper where the child’s emotional and physical development is
threatened. Id.A request to terminate a parent’s rights is not made lightly, and before an
involuntary termination of parental rights may occur 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.
13
(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’s burden of proof in termination of parental
rights cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257,
1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2). If the trial court finds that the
allegations in a petition described in section 4 of this chapter are true, the court shall
terminate the parent-child relationship. I.C. § 31-35-2-8(a).
I. Whether Continuation of the Parent-Child Relationship Poses a Threat
Initially, we observe that Indiana Code section 31-35-2-4(b)(2)(B) requires a trial
court to find that only one of the three elements of subsection (b)(2)(B) has been
established by clear and convincing evidence before properly terminating parental rights.
See L.S., 717 N.E.2d at 209. Because we find it to be dispositive, we limit our review to
Father’s allegations of error pertaining to subsection (b)(2)(B)(ii) of Indiana’s termination
statute, namely, whether ECDCS presented clear and convincing evidence establishing
that there is a reasonable probability that the continuation of the parent-child relationship
poses a threat to the well-being of the child.
We must first consider Father’s assertion that continuation of the parent-child
relationship does not pose a threat to Son. A trial court need not wait until a child is
irreversibly influenced by a deficient lifestyle such that his or her physical, mental, and
14
social growth is permanently impaired before terminating the parent-child relationship.
In re E.S., 762 N.E.2d 1287 (Ind. Ct. App. 2002).
Father argues that the trial court’s conclusion that he was a threat to Son’s well-
being is not supported by the evidence. We disagree. It is true that Father maintained a
home and a job. It is true that Father somewhat complied with services. It is true that
that the trial court concluded that there is “no evidence to conclude that [Father] is wholly
inadequate as a parent.” Appellant’s App. pp. 15-16. We also agree with several of the
service providers and the trial court that Father loves Son very much, in his own way.
However, it is also true that after two years of services, Father could still not
contain his own emotions in the presence of Son or adequately differentiate between
appropriate and inappropriate topics of conversation. Importantly the Family Case
Manager, CASA, and Therapist all agreed that Father’s explosive behavior triggered
Son’s explosive behavior. This did not change throughout the case. Father’s last
explosive outburst on April 20, 2012 was a full twenty-six months after his explosive
outburst that initially caused Son to be removed from his care. Father was repeatedly
warned and advised not to discuss Son’s placement or other adult topics with Son.
However, Father continued to do so, even after a clear correlation was made between
these inappropriate conversations and Son’s emotional outbursts. Tr. p. 80. Not a single
provider could recommend reunification, because Father was a trigger to Son’s
destructive and dangerous outbursts. Father’s behavior was especially harmful to a child
like Son who is constantly struggling with so many other, very serious, mental health
issues. Father was explicitly and repeatedly told that his angry, threatening interactions
15
exacerbated Son’s PTSD. In over two years, Father never proved that he could control
himself in this respect around Son.
As noted earlier, 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. D.D., 804 N.E.2d at 266. After reviewing the record, we conclude that ECDCS
presented clear and convincing evidence to support the trial court’s findings and ultimate
determination that there is a reasonable probability that the continuation of the parent-
child relationship poses a threat to the well-being of the child. Father’s arguments to the
contrary amount to an impermissible invitation to reweigh the evidence. See D.D., 804
N.E.2d at 265.
II. Whether Termination is in Son’s Best Interests
Father also argues that ECDCS failed to show that termination of the parent-child
relationship is in Son’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 ECDCS and to
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
CASA to terminate parental rights, in addition to evidence that the continuation of the
parent-child relationship poses a threat to the child, 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).
16
The trial court found that both the Family Case Manager and the CASA testified
that termination of parental rights was in the best interests of Son. Appellant’s App. p.
16. The CASA testified that he could never recommend placing Son back with Father.
When asked what the CASA considered when making his opinion, the CASA testified,
“The alternative is to give more time. It’s been almost two and a half year
and who knows how many more years it would take. [Son] needs stability.
He needs a family. He wants to be adopted. He’s told me that repeatedly.
He’s told other people the same and I think that’s what we should do.”
Tr. p. 354.
Family Case Manager testified that terminating Father’s parental rights was in
Son’s best interests because,
“[Son] needs permanency. He has been waiting for permanency for quite
awhile. It’s the opinions of the doctors and the therapists that termination is
in his best interest. And just [Father]’s lack of progress. We’ve been doing
this for over two years. Father has made some progress but I just don’t feel
as though it’s satisfactory and, also, [Son] – I spoke with [Son] on Monday
and he said that he does want to be adopted.”
Tr. p. 339. Accordingly, the trial court’s conclusion that termination of Father’s parental
rights is in Son’s best interests is not clearly erroneous. Id.III. Satisfactory Plan
Finally, Father contends that the trial court erred when it concluded that ECDCS
has a satisfactory plan for the care and treatment of Son. In order for the trial court to
terminate the parent-child relationship the trial court must find that there is a satisfactory
plan for the care and treatment of the child. In re B.D.J., 728 N.E.2d 195, 204 (Ind. Ct.
App. 2000). 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.17
Here Father argues that Son’s need for stability is not assured if Father’s rights are
terminated. Son’s foster mother is not planning to adopt him and has asked ECDCS to
find another placement for Son. However, foster mother has also asserted that she will
keep Son as long as she can. In addition, a plan for the care and treatment of the
children is satisfactory even if there is not a specific family in place to adopt the
children. Id. Attempting to find suitable parents to adopt Son is a satisfactory plan. See
Lang v. Starke County OFC, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007). For all of these
reasons, the trial court’s determination on this issue is not clearly erroneous.
Conclusion
ECDCS presented clear and convincing evidence to support the juvenile court’s
findings and ultimate determination that there is a reasonable probability that the
continuation of the parent-child relationship poses a threat to the well-being of Son; that
termination of the parent-child relationship is in Son’s best interests, and that ECDCS’s
search for an adoptive family is a satisfactory plan for Son’s placement after Father’s
parental rights have been terminated.
Affirmed.
MAY, J., concurs.
BAKER, J., concurs with separate opinion.
18
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION )
OF PARENT-CHILD RELATIONSHIP OF )
R.E. (Minor Child), )
)
and, )
)
D.E. (Father), )
) No. 20A05-1209-JT-469
Appellant-Respondent, )
)
vs. )
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
The Honorable Deborah A. Domine, Magistrate
Cause No. 20C01-1203-JT-8
BAKER, Judge, concurring.
I reluctantly concur and write separately only to explain my misgivings about the
outcome of this case. In my view, this is a case where a father was desperately trying to
do everything he could to reunite with his son, but the son’s mental conditions were such
that Father’s efforts—consistent though imperfect at least through the filing of the
termination petition—got him nowhere. A child has a right to both child support and
parenting time that neither parent can contract away, even when both parents are in
agreement. Perkinson v. Perkinson, No. 36S05-1206-DR-371, slip op. at 1 (Ind. June 25,
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2013). However, there are also cases such as this one where the parent-child relationship
may be permanently severed despite a parent’s attempted involvement, so long as it is the
government that requests it.
By all accounts, Father actively participated in the services ordered by the CHINS
court until the DCS filed a petition to terminate his rights. And as pointed out by the
majority, the CHINS court found that Father was in compliance with the case plan at
every hearing up until the evidentiary hearing on the termination petition, with the last
finding made a mere three weeks before the evidentiary hearing. In other words, Father
complied with the case plan for more than two years only to have his supervised
visitation revoked when Son’s behavior deteriorated, then reinstituted through family
therapy and additional services, then revoked again when Father showed his frustration
during an exasperated goodbye to his son on April 20, 2012, which occurred within a few
weeks after the DCS filed the termination petition. In my view, although Father was not
a perfect parent, the record demonstrated that Father was committed to doing what was
necessary to reunify with Son.
Nevertheless, under our standard of review, I am compelled to agree with the
majority that despite all of Father’s efforts over a period of more than two years, there is
evidence in the record to support the finding that the continuation of the parent-child
relationship posed a threat to Son. Simply put, there was evidence that Father was unable
to control his emotions around Son, which further exacerbated Son’s fragile mental state.
So although I am loath to do so in this case, I reluctantly concur.
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