in-the-matter-of-the-termination-of-the-parent-child-relantionship-of ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 28 2014, 9:21 am
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 DCS:
DANIEL A. DIXON GREGORY F. ZOELLER
Lawrence County Public Defender Agency Attorney General of Indiana
Bedford, Indiana
ROBERT J. HENKE
CHRISTINE REDELMAN
Deputies Attorney General
Indianapolis, Indiana
ATTORNEY FOR APPELLEE CASA:
DARLENE STEELE MCSOLEY
Bedford, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
)
G.B., D.B., E.B., Li.B., C.B., & Z.B., )
Minor Children, )
)
and )
)
L.B., Father, )
)
Appellant-Respondent, )
)
vs. ) No. 47A05-1405-JT-194
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAWRENCE CIRCUIT COURT
The Honorable Andrea McCord, Judge
Cause Nos. 47C01-1307-JT-268, 47C01-1307-JT-269, et. al
October 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
L.B. (Father) appeals the involuntary termination of his parental rights to G.B., D.B.,
E.B., Li.B., C.B., and Z.B. (collectively, Children). He argues the Department of Child
Services (DCS) did not present sufficient evidence that termination was in the best interests
of Children and that a satisfactory plan existed for the care and treatment of Children
following termination. We affirm.
FACTS AND PROCEDURAL HISTORY
Father and S.B. (Mother)1 (collectively Parents) are the biological parents of G.B.,
born October 24, 1998; D.B., born July 20, 2000; E.B., born June 2, 2002; Li.B., born April
26, 2006; C.B., born November 13, 2009; and Z.B., born October 11, 2010. On October 26,
2011, DCS filed Child in Need of Services (CHINS) petitions for Children2 after DCS found
an active methamphetamine lab, heroin balloons, syringes, and pipes at the family home.
On January 3, 2012, Parents admitted Children were CHINS and the trial court so
adjudicated them. The trial court ordered Parents to, among other things, sign releases
necessary to monitor compliance with services; maintain safe and stable housing; maintain
stable income; refrain from using or manufacturing illegal drugs; participate in home-based
counseling, family counseling, parenting assessment and recommendations, and substance
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Mother’s parental rights were also involuntarily terminated, but she does not participate in this appeal.
2
Father’s oldest child, B.B., was included in the CHINS petition but was not part of this termination action
because B.B’s mother assumed custody of him.
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abuse assessment and recommendations; refrain from criminal activity; and submit to random
drug screens. Children were originally placed with Parents, but Parents did not maintain
stable housing and income. Parents were involved in a shoplifting incident with Father’s
oldest child, B.B., while Children were in their care. Children were eventually placed in
three separate foster homes: L.B., C.B., and Z.B. were placed in one home; G.B. and D.B.
were placed in another; and E.B. was placed in a third.
On July 26, 2013, DCS filed a petition to terminate parental rights based on Parents’
non-compliance with services. The trial court held evidentiary hearings on termination on
December 10, 2013, and January 30, 2014. Father was incarcerated at the time of the
termination hearings for a conviction based on his battery of Mother. On April 2, 2014, the
trial court terminated Father’s parental rights.
DISCUSSION AND DECISION
We review termination of parental rights with great deference. In re K.S., D.S., &
B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
credibility of 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 most favorable to the
judgment. Id. In deference to the juvenile court’s unique position to assess the evidence, we
will set aside a judgment terminating a parent’s rights only if it is clearly erroneous. In re
L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534
U.S. 1161 (2002).
When, as here, a judgment contains specific findings of fact and conclusions thereon,
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we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children,
839 N.E.2d 143, 147 (Ind. 2005). We determine first whether the evidence supports the
findings and second 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 juvenile court’s decision, we must affirm. In re 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. A trial court must subordinate the interests
of the parents to those of the child, however, when evaluating the circumstances surrounding
a termination. In re K.S., 750 N.E.2d at 837. The right to raise one’s own child should not
be terminated solely because there is a better home available for the child, id., but parental
rights may be terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
To terminate a parent-child relationship, the State must allege and prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six
(6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification are
not required, including a description of the court’s finding,
the date of the finding, and the manner in which the finding
was made.
(iii) The child has been removed from the parent and has been
under the supervision of a county office of family and
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children or probation department for at least fifteen (15)
months of the most recent twenty-two (22) months, beginning
with the date the child is removed from the home as a result
of the child being alleged to be a child in need of services or
a delinquent child;
(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; 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 must provide clear and convincing proof of these
allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied. If the court
finds the allegations in the petition are true, it must terminate the parent-child relationship.
Ind. Code § 31-35-2-8.
Father challenges only whether DCS presented sufficient evidence termination was in
the best interests of Children and whether DCS had a satisfactory plan for the care and
treatment of the Children following termination. We review each in turn.
1. Best Interests
Pursuant to Ind. Code § 31-35-2-4(b)(2)(C), DCS must provide sufficient evidence
“that termination is in the best interests of the child.” In determining what is in the best
interests of a child, the trial court is required to look beyond the factors identified by DCS
and to consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App.
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2009). In so doing, the trial court must subordinate the interests of the parent to those of the
child. Id. The court need not wait until a child is harmed irreversibly before terminating the
parent-child relationship. Id. Recommendations of the case manager and court-appointed
advocate, in addition to evidence the conditions resulting in removal will not be remedied,
are sufficient to show by clear and convincing evidence that termination is in the child’s best
interests. Id. A parent’s historical inability to provide a suitable environment, along with the
parent’s current inability to do the same, supports finding termination of parental rights is in
the best interests of the children. Lang v. Starke County Office of Family and Children, 861
N.E.2d 366, 373 (Ind. Ct. App. 2007), trans. denied.
DCS presented evidence Children were originally removed because the family home
had a working methamphetamine lab located in the garage and Father and Mother were using
drugs. The family stayed at multiple homeless shelters over the span of a year, and each time
the family was forced to leave the shelter because Mother and Father did not follow the rules
of the shelter.
Father argues the facts of the instant case are similar to those in In re G.Y., 904 N.E.2d
1257 (Ind. 2009), and In re J.M., 908 N.E.2d 191 (Ind. 2009). Both are distinguishable.
Like the mother in In re G.Y., Father is incarcerated. G.Y.’s mother had not
committed any offenses while G.Y. was alive, she completed multiple programs and services
while incarcerated, she secured a full time job and housing before her release from
incarceration, and her release from incarceration was imminent. In re G.Y., 904 N.E.2d at
1262. Those facts prompted our Indiana Supreme Court to hold DCS had not presented
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sufficient evidence that the termination of the parental relationship between G.Y. and his
mother was in G.Y.’s best interests. Id. at 1264.
Our Indiana Supreme Court made similar findings regarding the parents who were the
subject of In re J.M.: the parents had imminent release dates, had completed all services
offered by DCS, and had secured post-incarceration housing and employment. 908 N.E.2d at
194-96.
By contrast, in the instant case, Father testified he could shorten his sentence by
pursuing a bachelor’s degree, but had yet to begin pursuing a degree at the time of the
termination hearing. He testified he did not have a plan for employment or housing on his
release, and he still faced criminal charges stemming from an incident where Parents and
Father’s oldest son were arrested for shoplifting. There was sufficient evidence termination
was in the best interests of the children. See Matter of M.B., 666 N.E.2d 73, 78-9 (Ind. Ct.
App. 1996) (termination of parental rights was in children’s best interest based on Father’s
undeterminable release date from incarceration, substance abuse issues, and lack of ability to
care for children upon his release from incarceration), trans. denied.
2. Satisfactory Plan for Care and Treatment
Pursuant to Ind. Code § 31-35-2-4(b)(2)(D), DCS must provide sufficient evidence
there is a satisfactory plan for the care and treatment of the child. We have held “[t]his plan
need not be detailed, so long as it offers a general sense of the direction in which the child
will be going after the parent-child relationship is terminated.” In re L.B., 889 N.E.2d 326,
341 (Ind. Ct. App. 2008).
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Father argues DCS did not provide sufficient evidence of a satisfactory plan for the
care and treatment of the Children after his parental rights were terminated. He noted
Children were in three different foster homes and no adoption proceedings had been initiated
at the time of the termination. Father also asserts there was no plan to continue sibling
visitation should the Children be adopted into different homes.
At the termination hearing, DCS presented evidence all three foster families were
willing to adopt the children who resided with them and other families were willing to
consider adoption. Children had been participating in weekly sibling visitation, and there
was no indication those visits would not continue. Based on the evidence, we conclude there
existed a satisfactory plan for the care and treatment of Children.
CONCLUSION
DCS presented sufficient evidence that termination of Father’s parental rights was in
the best interests of Children and a satisfactory plan existed for care and treatment of
Children when Father’s parental rights were terminated. Accordingly, we affirm.
Affirmed.
VAIDIK, C.J., and FRIEDLANDER, J., concur.
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