In the Matter of the Term. of the Parent-Child Rel. of J.R. and L.R. and J.E. v. Indiana Dept. of Child Services ( 2012 )

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:
MARK LEEMAN TRICIA L. THOMPSON
Cass County Conflict Public Defender Indiana Dep’t of Child Services
Leeman Law Offices Logansport, Indiana
Logansport, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE FILED
Nov 20 2012, 9:22 am
COURT OF APPEALS OF INDIANA
In the Matter of the Termination of the Parent-Child
) CLERK
of the supreme court,
court of appeals and
tax court
Relationship of J.R. and L.R., minor children,
)
and Je.R., their father, )
)
Je.R., )
)
Appellant-Respondent, )
)
vs. ) No. 09A05-1203-JT-152
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE CASS CIRCUIT COURT
The Honorable Leo T. Burns, Judge
Cause No. 09C01-1107-JT-10
November 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Je.R. (“Father”) appeals the involuntary termination of his parental rights to his
children, J.R. and L.R. Father challenges the sufficiency of the evidence supporting the
trial court’s judgment.
We affirm.
FACTS AND PROCEDURAL HISTORY
Father is the biological father of J.R., born in August 2004, and L.R., born in May
2007.1 The facts most favorable to the trial court’s judgment reveal that in July 2010 the
local Cass County office of the Indiana Department of Child Services (“DCS”) received
and substantiated a referral alleging that the parents were “involved in a violent domestic
situation, the family home [had been] recently destroyed by fire, and the family ha[d] no
stable or suitable home in which to reside with the child[ren].” Appellant’s App. at 15.
DCS initiated an investigation of the matter and discovered that Father was living in a tent
on the property where the family trailer had burned down. Father informed the DCS
assessment caseworker that he and the children were temporarily sleeping at the paternal
grandfather’s home at night. The children were either with the grandfather or with Mother
at her camper during the weekdays. On the weekends, the children stayed with an aunt.
DCS also learned that Father had been arrested several days earlier in Jasper County
on multiple drug-related charges including Class D felony possession of chemical reagents
or precursors with intent to manufacture a controlled substance, Class D felony possession
of methamphetamine, and Class A misdemeanor possession of paraphernalia. There were
1
The parental rights of both children’s biological mother, A.R. (“Mother”), were terminated by the
trial court in its February 2012 judgment after Mother signed consents to voluntarily relinquish her parental
rights. Mother does not participate in this appeal. Consequently, we limit our recitation of the facts to
those pertinent solely to Father’s appeal.
2
also allegations of an earlier shooting involving Father and Mother and a drug-related
arrest of two individuals living in a motor home on the parents’ property approximately
two weeks after the fire. Based on all the information gathered during its assessment,
DCS asked Father to submit to a drug screen. Father complied.
Upon learning that Father’s drug screen result was positive for methamphetamine
and marijuana, DCS took both children into emergency protective custody and filed
petitions, under separate cause numbers, alleging J.R. and L.R. were children in need of
services (“CHINS”). Shortly thereafter, the children were relocated to another relative
placement. Following a hearing in August 2010, J.R. and L.R. were adjudicated CHINS,
and a dispositional order was entered in October 2010.
As part of its dispositional decree, the trial court ordered that both children be
formally removed from Father’s custody and deemed wards of DCS. The dispositional
order also directed Father to successfully complete a variety of tasks and services designed
to address his parenting deficiencies and to facilitate reunification with the children.
Among other things, Father was ordered to: (1) refrain from the use, manufacture, sale or
distribution of any illegal or controlled substances; (2) successfully complete a substance
abuse intensive out-patient program (“IOP”) and follow all resulting recommendations; (3)
obtain and maintain a legal source of income, as well as safe and stable housing; (4)
successfully complete parenting classes and home-based counseling services; (5)
participate in regular supervised visits with the children; and (6) maintain regular contact
with DCS and notify caseworkers of any change in address, household composition,
telephone number, or employment.
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Father’s participation in court-ordered services during the ensuing months was
sporadic and ultimately unsuccessful. Father tested positive for amphetamine,
methamphetamine, and marijuana in September 2010 and was positive for marijuana in
December 2010. Although Father submitted to a substance abuse assessment in December
2010 and eventually successfully completed an IOP in March 2011, he failed to participate
in the recommended follow-up treatment programs, including Narcotics Anonymous
(“NA”) and Alcoholics Anonymous (“AA”), after completing the IOP. Father also failed
to maintain his sobriety following his participation in the IOP, testing positive for
methamphetamine once in April 2011 and twice in June 2011. Positive test results for
marijuana were likewise reported in June and July 2011, and Father tested positive for
amphetamine in June 2011. Father could not be located for any additional drug screens
after July 2011.
Father also continued to engage in criminal activities throughout the underlying
CHINS cases. In January 2011, Father was arrested in Cass County on multiple drug-
related charges including Class D felony possession of methamphetamine; Class A
misdemeanor possession of paraphernalia, driving while suspended, and reckless
possession of paraphernalia. Father later missed a court date and was “on the run” for
approximately three months beginning in July 2011. Tr. at 17. While attempting to evade
arrest, Father discontinued his participation in all reunification services. He also failed to
visit with the children and cut-off all communication with DCS.
Based on Father’s non-compliance and lack of progress in services, DCS filed
petitions seeking the involuntary termination of Father’s parental rights to J.R. and L.R. in
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July 2011. A consolidated evidentiary hearing on the termination petitions was held in
December 2011. During the termination hearing, DCS presented substantial evidence
concerning Father’s failure to successfully complete and/or benefit from a majority of
court-ordered reunification services available throughout the underlying CHINS and
termination cases. In addition, DCS established that Father had recently been arrested and
incarcerated on outstanding warrants pertaining to his pending criminal charges, never
successfully resolved his addiction issues, and remained incapable of providing the
children with a safe and stable home environment. DCS also presented evidence showing
the children were living together and thriving in pre-adoptive relative foster care.
At the conclusion of the termination hearing, the trial court took the matter under
advisement. On February 27, 2012, the trial court entered judgments terminating Father’s
parental rights to J.R. and L.R. Father now appeals.
DISCUSSION AND DECISION
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), trans. denied.
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Here, in terminating Father’s parental rights, the trial court entered specific findings
and conclusions. 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 inferences support the trial court’s decision, we must affirm.
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. 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. Id. 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.
Before an involuntary termination of parental rights may occur, 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.
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(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; [and]
(C) that termination is in the best interests of the child . . . .
Ind. Code § 31-35-2-4(b)(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, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). Moreover, if the
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. Ind. Code § 31-35-2-8(a). Father
challenges the sufficiency of the evidence supporting the trial court’s findings only as to
subsections (b)(2)(B) and (C) of the termination statute cited above.
I. Conditions Remedied/Threat to Well-Being
Indiana Code section 31-35-2-4(b)(2)(B) requires the trial court to find that only one
of the three requirements of subsection (b)(2)(B) has been established by clear and
convincing evidence before terminating parental rights. Here, the trial court determined
that DCS established by clear and convincing evidence that there is a reasonable
probability the conditions resulting in J.R.’s and L.R.’s removal or continued placement
outside of Father’s care will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).
When making such a determination, 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
evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001),
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trans. denied. The court must also “evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” 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 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 trial court may also consider any
services offered to the parent by the county department of child services and the parent’s
response to those services, as evidence of whether conditions will be remedied. Id.Moreover, DCS was not required to provide evidence ruling out all possibilities of change;
rather, it needed to establish only that there is a reasonable probability the parent’s
behavior will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).
On appeal, Father asserts that he “made a good decision regarding finding a home
for the children after his house burn[ed] down and he started getting into trouble with the
law” by finding a “safe, secure, and clean place for his children to live during this turbulent
period.” Appellant’s Br. at 16. Father further claims that he has “responded well to drug
treatment” in the past and “could find success in the future if he reenrolled in treatment.”
Id. at 17. Father also states that his “desire to reunite with his children encouraged him to
remain off drugs” and that he “did not hide from his drug issues” but instead “admitted” he
had a problem. Id. at 18. Father therefore contends that DCS failed to establish that the
conditions resulting in the children’s removal and continued placement outside his care
would likely not be remedied.
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In terminating Father’s parental rights, the trial court made multiple findings
regarding his unresolved substance abuse issues, parenting deficiencies, and lack of
stability. Specifically, the court found that although Father initially “participated in and
cooperated with the services provided to him,” he nevertheless was unable to “obtain
steady employment, or a stable, self-sufficient residence” during this “positive period.”
Appellant’s App. at 87.2 The trial court went on to find that after his relapse in July 2011,
Father’s “contact and cooperation with DCS ceased[,] and because of criminal charges
filed in Jasper County and Cass County, [Father] was on the run and failed to participate in
services.” Id. The court also noted that Father “had no meaningful contact” with the
children, failed to obtain employment and housing, and continued to have trouble with
criminal cases in several counties during the summer and fall of 2011. Based on these and
other findings, the trial court determined that there is a reasonable probability the
conditions resulting in removal and continued placement of the children outside of Father’s
care would likely not be remedied. Our review of the record leaves us confident that clear
and convincing evidence supports the trial court’s findings cited above.
Although the evidence makes clear that Father initially participated in several of the
recommended services, including a substance abuse evaluation, IOP, and supervised
visitation with the children, he refused to follow through with the IOP post-treatment
recommendations. Father then relapsed and began using illegal substances again
2
For clarification purposes, we note that because DCS filed separate involuntary termination
petitions for each child under separate cause numbers, the trial court issued separate termination orders for
each child. The language contained in the termination orders and cited herein, however, is substantially the
same, aside from the headings and other specific information pertaining to each child such as names, birth
dates, etc. We therefore cite to only one of the termination orders.
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approximately one month after completing the IOP. The evidence further establishes that
Father failed to achieve any significant, long-term improvement in his ability to parent J.R.
and L.R. despite a wealth of services available to him throughout the underlying
proceedings.
During the termination hearing, DCS case manager Stephanie Neher (“Neher”)
informed the trial court that Father had failed to remedy “the reasons for removal with the
drugs and the instability.” Tr. at 110. Neher also explained that she had experienced
significant difficulty in contacting Father throughout the duration of the underlying
proceedings, that Father repeatedly refused to participate in child and family team meetings
despite having knowledge of said meetings, and that although there was a “short period of
time from January to March [2011] that he was doing rather well, and [Neher] had hopes
that [Father] would make it[,]… [Father] relapsed and went downhill from there.” Id. at
121.
Drug and Alcohol Counselor Deborah Carithers (“Carithers”) likewise testified that
although Father had been an “active participant” and had done “quite well” during the IOP
classes, he later refused her offer to “come back as an alumni [sic]” and seek help
following his relapse. Id. at 64, 66. Carithers also testified that without a support system,
Father’s prognosis for successfully kicking his addiction to methamphetamine was
“Guarded,” explaining that although it is possible, she had “never known anybody
personally that did it without some kind of support.” Id. at 68. As for visitation, home-
based services counselor Jan Shaver (“Shaver”) informed the trial court that Father never
progressed from fully-supervised visits with the children. Shaver also confirmed that
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Father’s participation in home-based services became irregular after Father moved out of
the paternal grandfather’s home, and that Father’s housing situation never improved.
Father’s own testimony lends further support to the trial court’s judgment. During
the termination hearing, Father confirmed that he was currently incarcerated, had drug-
related criminal charges pending in two separate counties, and was unavailable to care for
the children at that time. Father further admitted that he had failed to obtain employment
or stable housing since the time the children were removed from his care, was on the run
from police for several months leading up to the termination hearing, had failed to visit
with the children since July 2011, never participated in any after-care substance abuse
treatment program, such as AA or NA, and never asked service providers for help
following his relapse in April 2011.
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. D.D., 804 N.E.2d at 266. 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). Here,
the record makes clear that throughout the underlying proceedings Father demonstrated a
persistent unwillingness and/or inability to take the actions necessary to show that he is
capable of (1) overcoming his addiction to methamphetamine and other substances and (2)
providing J.R. and L.R. with the safe, stable, and drug-free home environment which the
children need to thrive. Based on the foregoing, we conclude that the trial court’s
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determination that there is a reasonable probability the conditions resulting in the
children’s removal and continued placement outside Father’s care will not be remedied is
supported by clear and convincing evidence. Father’s arguments to the contrary,
emphasizing his self-serving testimony rather than the evidence cited by the trial court in
its termination order, amount to an invitation to reweigh the evidence, which we may not
do. See D.D., 804 N.E.2d at 265.
II. Best Interests
We next consider Father’s assertion that DCS failed to prove termination of his
parental rights is in J.R.’s and L.R.’s respective 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 v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.
2003). 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 other
pertinent findings relating to J.R.’s and L.R.’s best interests. Specifically, the trial court
noted that during the summer and fall of 2011 Father had “no meaningful contact” with the
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children, and the court-appointed special advocate (“CASA”) was unable to talk with, “let
alone work with” Father during that time. Appellant’s App. at 87-88. The court also found
that J.R. and L.R. were thriving in relative foster care placement, that the Guardian ad
Litem had recommended termination of Father’s parental rights, and that the children had
“settled into a pattern of school attendance and sports involvement which would be
disrupted” if they were reunified with Father. Id. at 88. Finally, the trial court specifically
found that Father continued to struggle with “substance abuse and the subsequent
entanglements resulting from criminal charges related to possession of controlled
substances,” did not have a “steady job or a suitable residence” for the children, and
currently had “no way to provide care” for the children. Id. Based on these and other
findings, the trial court concluded that termination of Father’s parental rights is in both
children’s best interests. These findings, too, are supported by the evidence.
During the termination hearing, CASA Tony Magna (“Magna”) informed the trial
court that in March 2011 he “really had high hopes” that Father would be successful in
services and that reunification would be possible, but “all of a sudden everything went
downhill” for Father. Tr. at 98. In recommending termination of Father’s parental rights,
Magna testified that he was “very comfortable” with the children’s current pre-adoptive
relative placement with their aunt and uncle and believed that the children had the chance
for a “really good future” with the relative placement. Id. at 98, 100. Magna further
indicated that although J.R. loves Father, the child also “loves” and feels “safe and secure”
with his aunt and uncle. Id. at 99. Case manager Neher likewise confirmed that both
children were “doing wonderful[ly]” in their current relative care placement, that J.R. was
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an “honor roll” student, and that both children needed a “stable and safe home with
permanency.” Id. at 109, 124.
Based on the totality of the evidence, including Father’s current incarceration,
unresolved struggle with substance abuse, and failure to successfully complete and/or
benefit from a wealth of reunification services available to him during the underlying
proceedings, coupled with the testimony from the DCS case manager Neher and CASA
Magna recommending termination of the parent-child relationships, we conclude that there
is sufficient evidence to support the trial court’s determination that termination of Father’s
parental rights is in J.R.’s and L.R.’s respective best interests. See, e.g., In re A.I., 825
N.E.2d 798, 811 (Ind. Ct. App. 2005) (concluding that 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.
NAJAM, J., and MAY, J., concur.
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