In re the Termination of the Parent-Child Relationship of A.C. and M.C. (Minor Children), N.C. (Father) v. Indiana Department of Child Services (mem. dec.) , 94 N.E.3d 759 ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                     FILED
    regarded as precedent or cited before any                           Nov 21 2017, 10:18 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                               Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                          and Tax Court
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Steven J. Halbert                                        Curtis T. Hill, Jr.
    Indianapolis, Indiana                                    Attorney General of Indiana
    Abigail R. Recker
    Robert J. Henke
    Deputy Attorneys General
    Indianapolis, Indiana
    ATTORNEY FOR APPELLEE
    GUARDIAN AD LITEM
    Jennifer Balhon
    Child Advocates, Inc.
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In re the Termination of the                             November 21, 2017
    Parent-Child Relationship of                             Court of Appeals Case No.
    A.C. and M.C. (Minor                                     49A02-1705-JT-1147
    Children),                                               Appeal from the Marion Superior
    N.C. (Father),                                           Court
    The Honorable Marilyn A.
    Appellant-Defendant,
    Moores, Judge
    v.                                               The Honorable Larry E. Bradley,
    Magistrate
    Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017      Page 1 of 10
    Indiana Department of Child                                   Trial Court Cause No.
    Services,                                                     49D09-1607-JT-854
    49D09-1607-JT-855
    Appellee-Plaintiff.
    Vaidik, Chief Judge.
    Case Summary
    [1]   N.C. (“Father”) appeals the termination of his parental rights to his two
    children. Finding no error, we affirm.
    Facts and Procedural History
    [2]   Father has two children, M.C., who was born in October 2003, and A.C., who
    was born in January 2011.1 In March 2015, Father and A.C.’s mother were
    arrested for shoplifting. A.C. was present at the time of arrest, so the
    Department of Child Services (DCS) was called to the scene. On March 24,
    DCS filed a petition alleging that M.C. and A.C. (collectively “the children”)
    1
    M.C. and A.C. have different mothers. M.C.’s mother signed a consent for M.C. to be adopted and, as
    such, is not a party to this appeal. A.C.’s mother’s parental rights were also terminated by the trial court, but
    she is not a party to this appeal.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017             Page 2 of 10
    were children in need of services (CHINS). The court ordered the children to
    be placed in the care of their paternal grandmother.
    [3]   In July 2015, Father stipulated to DCS’s claims, and the children were
    adjudicated CHINS. The court then held a dispositional hearing and ordered
    Father to participate in and successfully complete a father-engagement
    program, complete a substance-abuse assessment and follow all treatment
    recommendations, and submit to random drug and alcohol screenings. Ex. 10.
    The initial permanency plan was reunification. After the hearing, Father “very
    aggressively” told DCS that he would not participate in services or take “any
    drug screens . . . ‘cause he hasn’t done anything wrong.” Tr. Vol. II p. 53.
    [4]   Father, true to his word, did not partake in any of the services that were
    ordered. DCS received only one report from father-engagement services, did
    not receive any reports from the substance-abuse assessor, and received only a
    few drug-screen results. These results were received because the court ordered
    Father to submit to drug and alcohol screenings at the courthouse immediately
    after his status hearings. Father only submitted samples at the courthouse after
    status hearings and otherwise ignored the court’s order that he complete
    random drug and alcohol screenings. Father took “three or four” screenings at
    the courthouse. Tr. Vol. II p. 52. On June 23, 2016, the trial court entered a
    permanency order in which it found, “[Father] continues to struggle with drug
    Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017   Page 3 of 10
    issues. He has never provided a clean screen.”2 Ex. 3. As a result, the court
    ordered Father “to have three consecutive clean screens” before beginning
    supervised visitation with the children. Ex. 6.
    [5]   In January 2016, the children were moved from their grandmother’s house to
    their paternal aunt and uncle’s house, which was pre-adoptive. When the
    children first began living with their aunt and uncle, they were “sad . . .
    distraught, crying at times” because they did not understand where their parents
    were. Id. at 40. Over the course of these proceedings, the children “gr[ew] up a
    lot” and became more emotionally stable. Id. Both began attending therapy to
    help with their issues. Specifically, both children were able to address any
    traumatic memories, process anger and anxiety, and communicate their
    emotions in a healthy way. Additionally, A.C. was placed on medication to
    help combat her hyperactivity and stay in class at school. This was “a huge
    success for her.” Id. at 41. Six months later in June, DCS petitioned the court
    to change the permanency plan from reunification to adoption; the trial court
    granted the request.
    [6]   Following the change in permanency plan, DCS filed a petition for involuntary
    termination of Father’s parental rights, and an evidentiary hearing was held in
    April 2017. At the hearing, the children’s therapist stated that she was
    concerned that the children would “regress” if they were removed from their
    2
    A transcript of this hearing was not provided on appeal. Accordingly, we do not know the specifics of
    Father’s drug use.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017       Page 4 of 10
    aunt and uncle’s care. Id. at 43. The family case manager, Patsy Newson, also
    testified that Father never contacted her to request visitation time with his
    children, which “concerned [her] a lot.” Id. at 53. She stated that continuation
    of the parent-child relationship between Father and the children posed a threat
    to the children’s well-being because Father failed to engage with DCS and its
    service providers. Newson concluded by saying that termination was in the
    children’s best interests and that DCS had a plan for the children to be adopted
    if Father’s rights were terminated. The court-appointed special advocate
    (CASA) added that M.C., who was thirteen at the time of the hearing, had a
    desire to remain in contact with Father but wanted to remain living with her
    aunt and uncle. The CASA agreed with Newson that it was in the children’s
    best interests to be adopted because they needed stability and a sense of
    permanency. The CASA stated, “[T]here’s just such a difference between a
    year ago and now as far as how, how happy they are.” Id. at 16.
    [7]   The court terminated Father’s parental rights to the children, concluding that
    there was a reasonable probability that the conditions that resulted in the
    removal and continued placement outside of the home would not be remedied
    by Father. In its order, the court said, “[Father] knew what needed to be done
    to see his children but has not made an effort to follow through demonstrating
    he is unwilling or unable to actually be a parent.” Appellant’s App. Vol. II p.
    26. The court further concluded that continuation of the parent-child
    relationship posed a threat to the children’s well-being because it created a
    “barrier to obtaining permanency for them,” that termination was in the
    Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017   Page 5 of 10
    children’s best interests, and that DCS’s plan for adoption was satisfactory. Id.
    at 27.
    [8]    Father appeals.
    Discussion and Decision
    [9]    Father argues that the trial court erred when it terminated his parental rights.
    When reviewing the termination of parental rights, we do not reweigh the
    evidence or judge witness credibility. In re K.T.K., 
    989 N.E.2d 1225
    , 1229 (Ind.
    2013). Rather, we consider only the evidence and reasonable inferences that
    are most favorable to the judgment of the trial court. 
    Id.
     When a trial court has
    entered findings of fact and conclusions, we will not set aside the trial court’s
    findings or judgment unless clearly erroneous. 
    Id.
     To determine whether a
    judgment terminating parental rights is clearly erroneous, we review whether
    the evidence supports the trial court’s findings and whether the findings support
    the judgment. In re V.A., 
    51 N.E.3d 1140
    , 1143 (Ind. 2016).
    [10]   A petition to terminate parental rights must allege, 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.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017   Page 6 of 10
    (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). DCS must prove the alleged circumstances by
    clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court
    finds that the allegations in a petition are true, the court shall terminate the
    parent-child relationship. 
    Ind. Code § 31-35-2-8
    (a).
    [11]   Father contends that the court erred in concluding that there was a reasonable
    probability that the conditions that led to the removal of his children would not
    be remedied.3 He argues that the children were removed because of his
    shoplifting arrest, but the court terminated his rights because it presumed he
    3
    Father also argues that there is insufficient evidence to support the trial court’s conclusion that there is a
    reasonable probability that continuation of the parent-child relationship poses a threat to the children’s well-
    being. Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires clear and convincing
    evidence of only one of the circumstances listed in subsection (B). See In re I.A., 
    903 N.E.2d 146
    , 153 (Ind.
    Ct. App. 2009). Because we conclude that there is sufficient evidence to support the trial court’s conclusion
    that there is a reasonable probability that the reasons for placement outside the home will not be remedied,
    we do not address this argument. Father does not challenge the trial court’s conclusions that termination is
    in the children’s best interests or that adoption is a satisfactory plan for the care and treatment for the
    children.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017           Page 7 of 10
    was a drug user despite no evidence at the termination hearing that he had a
    drug problem. Father claims that the evidence presented at the “short and
    perfunctory hearing was limited to informing the court that [he] had not
    completed the drug testing that [DCS] required and [Father] does not dispute
    this fact.” Appellant’s Br. p. 8. Father’s argument fails for two reasons. First,
    to the extent that Father asserts that he should not have been subjected to
    random drug and alcohol screenings because there was no evidence that he
    abused drugs or alcohol, this argument is untimely. This is a request for us to
    review the CHINS orders, which were entered in July 2015. A party must file a
    Notice of Appeal within thirty days after the entry of final judgment. Ind.
    Appellate Rule 9(A)(1). “Unless the Notice of Appeal is timely filed, the right
    to appeal shall be forfeited . . . .” App. R. 9(A)(5). Father waited over two
    years to challenge the CHINS order. Accordingly, this argument is waived. See
    Smith v. Marion Cty. Dept. of Pub. Welfare, 
    635 N.E.2d 1144
    , 1148 (Ind. Ct. App.
    1994) (“[T]he time for appealing an issue in a CHINS proceeding commences
    when the dispositional decree is entered.”), trans. denied.
    [12]   Second, the relevant subsection of the termination statute—Section 31-35-2-
    4(b)(2)(B)(i)—is written in the disjunctive, so DCS need only prove either that
    there is a reasonable probability that the conditions that resulted in the child’s
    removal or that the reasons for continued placement outside the home of the
    parents will not be remedied. Father’s argument ignores the second part of this
    subsection, which DCS proved by clear and convincing evidence. After
    admitting that the children were CHINS, Father failed to engage in any services
    Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017   Page 8 of 10
    that the court ordered—father engagement, substance-abuse assessment, and
    random drug and alcohol screenings. Father also “very aggressively” told DCS
    that he would not be participating in services.4 Tr. Vol. II p. 53. “A pattern of
    unwillingness to deal with parenting problems and to cooperate with those
    providing social services, in conjunction with unchanged conditions, support a
    finding that there exists no reasonable probability that the conditions will
    change.” Lang v. Starke Cty. Office of Family & Children, 
    861 N.E.2d 366
    , 372
    (Ind. Ct. App. 2007), trans. denied.
    [13]   Father also had to be ordered by the court to submit to drug and alcohol
    screenings in the courthouse after status hearings. Father failed all of these
    screenings. This prompted the court to require Father to have three consecutive
    clean screens before visitation with his children could begin, but Father never
    went to additional screenings. Father argues that he did not submit to random
    screenings because he lived in Morgan County and DCS ordered his screenings
    to take place at a facility in Marion County. But Father had transportation to
    get to the screenings, never informed DCS that the location was inconvenient,
    and never asked for the screening location to be changed. Most importantly,
    Father never called family case manager Newson to request visitation with his
    children. “[T]he failure to exercise the right to visit one’s children demonstrates
    a lack of commitment to complete the actions necessary to preserve the parent-
    4
    Father also contends that DCS refused to refer him to a father-engagement program. The record, however,
    shows that DCS made the referral and that it remained open for approximately one year. See Tr. Vol. II p.
    67.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017      Page 9 of 10
    child relationship.” Lang, 
    861 N.E.2d at 372
     (internal quotations omitted). The
    trial court correctly concluded that Father “knew what needed to be done to see
    his children but has not made any effort to follow through demonstrating he is
    unwilling or unable to actually be a parent.” Appellant’s App. p. 26.
    Accordingly, we affirm the trial court’s order that there is a reasonable
    probability that the reasons for placement outside of Father’s home will not be
    remedied.
    [14]   Affirmed.
    Mathias, J., and Crone, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017   Page 10 of 10
    

Document Info

Docket Number: 49A02-1705-JT-1147

Citation Numbers: 94 N.E.3d 759

Judges: Vaidik

Filed Date: 11/21/2017

Precedential Status: Precedential

Modified Date: 10/19/2024