In the Matter of the Involuntary Termination of the Parent-Child Relationship of: E.N. (Minor Child), and M.N. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 23 2020, 10:12 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary January 23, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: E.N. (Minor 19A-JT-1888
Child), Appeal from the Montgomery
and Superior Court
The Honorable Heather Barajas,
M.N. (Father), Judge
Appellant-Respondent, Trial Court Cause No.
54D01-1901-JT-18
v.
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Tavitas, Judge.
Case Summary
[1] M.N. (“Father”) appeals the termination of his parental rights to E.N. (the
“Child”). We affirm.
Issue
[2] Father raises one issue, which we restate as whether there was sufficient
evidence that termination of the parent-child relationship was in the Child’s
best interests.
Facts
[3] Father and J.N. (“Mother”) 1 are parents of the Child, born in November 2007,
and the Child’s sibling, who is now an adult. 2 On January 23, 2018, police
arrested Mother and Father at their home for Count I, dealing in
methamphetamine, a Level 2 felony; Count II, possession of
methamphetamine, a Level 3 felony; Count III, possession of a narcotic drug, a
Level 5 felony; Count IV, maintaining a common nuisance, a Level 6 felony;
Count V, possession of a controlled substance, a Level 6 felony; and Count VI,
neglect of a dependent, a Level 5 felony. The Child was at home at the time of
1
Mother filed a Notice of Appeal on August 12, 2019; however, Mother filed a motion to dismiss her appeal,
which this Court granted on October 4, 2019. This decision, therefore, will focus only on facts as they relate
to Father.
2
The Child’s sibling became an adult prior to the fact finding hearing. This decision, therefore, will focus
only on facts as they relate to the Child.
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her parents’ arrest; the Child was removed on an emergency basis and placed
with maternal grandparents.
[4] On January 24, 2018, DCS filed a petition that the Child was a child in need of
services (“CHINS”). The Child was adjudicated a CHINS on March 28, 2018,
and placement remained with maternal grandparents. The trial court entered a
dispositional order on April 25, 2018, which required Father to: (1) maintain
contact with DCS; (2) participate in services recommended by DCS; (3)
maintain suitable income; (4) maintain a safe and stable home; (4) abstain from
consuming or possessing illegal substances; and (5) attend scheduled visitations3
with the Child.
[5] Marie Laston, the DCS family case manager (“FCM”), supervised these visits
and began working with Father on appropriate services. FCM Laston
supervised a total of seven visits. At one of the early visits, Father was “upset”
and “didn’t understand why he couldn’t talk about the case with the [C]hild”;
Father was an hour and sixteen minutes late to one session; one session was
cancelled due to both parents appearing late; and during one session, Father
remained in the car and told FCM Laston that “he was having a tough time and
it was really hard,” before he went inside to visit with the Child. Tr. Vol. II p.
100.
3
Initially, Father was prohibited from seeing the Child due to the criminal charges. Eventually, the plan
changed to allow one supervised two-hour visit per week with the Child.
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[6] DCS referred Father to Cummins Behavioral Health (“Cummins”) for an
intake assessment. Father’s assessment was scheduled for February 27, 2018;
however, Father did not attend his appointment. On April 11, 2018, Father
participated in his intake assessment; Father was then referred to intensive
outpatient therapy (“IOT”), addictions counseling, skills training, drug screens,
and case management. Father only attended nine of the twenty-four sessions
for IOT between April 24, 2018, and June 24, 2018; Father never attended
addictions counseling and did not begin the skills training due to his lack of
participation in IOT. An employee at Cummins attempted to contact Father to
re-engage Father in services; however, Father never returned the phone call.
Father was discharged from Cummins on July 2, 2018, due to his
noncompliance.
[7] Between January 30, 2018, and June 12, 2018, Father participated in drug
screens fifteen times, ten of which were positive for methamphetamine. On
June 14, 2018, DCS filed a motion to suspend the parents’ parenting time due
to parents’ noncompliance. The motion alleged, relevant to Father, that Father:
(1) tested positive for methamphetamine three times in April and twice in May;
(2) could not be reached in March by FCM Laston; (3) failed to appear at an
April drug screen; (4) only attended five of the eighteen requested IOT classes
as of May 2018; and (5) refused to participate in drug screens in May 2018.
The trial court temporarily suspended parenting time on June 15, 2018.
[8] In August 2018, Father went to an intake assessment at Sycamore Springs
inpatient treatment facility after FCM Laston miscommunicated information to
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Father regarding the treatment facility at which Father was to appear. Father
went to the program in Lafayette, when instead, he was to appear at the
location in Jeffersonville. Still, Father went through with the assessment at
Sycamore Springs, but Father was dismissed from Sycamore Springs after the
staff determined that another program would be more appropriate for Father. 4
Father ultimately made an appointment at another inpatient treatment facility,
but never followed through and did not attend his appointment. On September
4, 2018, Mother was charged with Count I, possession of methamphetamine, a
Level 6 felony; and Count II, trafficking with an inmate, a Level 5 felony.
[9] On December 10, 2018, the Child’s permanency plan changed to adoption. At
that time, DCS’s communication with Father had been “poor,” and Father had
not attended the referred treatment programs as of August 2018. Tr. Vol. II p.
87. Father also received services through Redwood Toxicology 5 where Father
completed his drug screens; Father missed nineteen screens, and Father was
suspended on three separate occasions due to noncompliance. 6
[10] Sometime in December 2018, Father again informed FCM Laston that he
wanted to participate in inpatient services; FCM Laston referred Father to a
4
Specifically, the Sycamore Springs staff thought that IOP, an outpatient program, would be better for
Father.
5
FCM Laston implemented the services of Redwood Toxicology because “sometimes there were car issues,
things of that nature, [Redwood] was to alleviate those problems to where Redwood would come to their
residence to be screened.” Tr. Vol. II p. 88.
6
The timing of these missed drug screens is somewhat unclear from the record; however, it appears to have
occurred between June and December 2018.
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detox program prior to inpatient services. Father ultimately failed to attend the
program and claimed that “he had advised one of the times he was trying to
prevent the electricity from his household getting shut off. On another occasion
he said that his dog was dying so he couldn’t go. . . .” Tr. Vol. II p. 89.
[11] On January 22, 2019, DCS filed a petition to terminate Mother’s and Father’s
parental rights. On May 17, 2019, the trial court granted DCS’s petition to
relieve DCS of providing further services to Mother and Father during the
pendency of the termination proceedings.
[12] The trial court held a fact finding hearing on April 4, 2019, and June 13, 2019.
At the time of the fact finding hearing, Mother’s criminal charges from August
2018 were still pending, and Mother had been incarcerated continuously since
her arrest. Father had entered into a plea agreement with regard to his January
2018 charges and was facing three to nine years at the time of the fact finding
hearing; Father’s sentencing hearing was set for June 24, 2019. Also, at the
time of the fact finding hearing, Father was unemployed, and Father’s house
was being foreclosed.
[13] Father testified that he would consent to a guardianship by maternal
grandparents. Father, however, failed to sign 7 a consent to guardianship, and
the maternal grandparents had not filed a petition for guardianship. No
7
It does not appear from the record that Father was ever presented a consent to sign.
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evidence was presented regarding why grandparents did not file a petition for
guardianship.
[14] FCM Laston asked the trial court to terminate Father’s parental rights due to
the pending criminal charges, upcoming likely incarceration, and Father’s
noncompliance with services. FCM Laston testified that, in September or
October 2018, she had a conversation with maternal grandparents about
guardianship, and they were “open to either” adoption or guardianship. Id. at
102. FCM Laston also testified that DCS had a “concern” with guardianship
because it is “dissolvable,” and DCS feared that, after Father and Mother
served their sentences, but without completing drug treatment, Father and
Mother could “get [the Child] back through a guardianship [and the Child]
could go through the same trauma again.” Tr. Vol. II p. 92. Instead, FCM
Laston testified that DCS desired the Child have stability in her life and that, in
her opinion, termination of Mother’s and Father’s parental rights was in the
Child’s best interests. After some questioning from the trial court, however,
FCM Laston could not answer how adoption would be better than
guardianship for the Child.
[15] Melissa Brush, the court appointed special advocate (“CASA”), testified that
guardianship or adoption would be in the best interests of the Child; and that,
although she was aware the maternal grandparents are willing to adopt, she is
uncertain if they are willing to establish guardianship over the Child. Stephanie
Rose, a psychologist with Valley Oaks Health, testified the Child has succeeded
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in her placement with maternal grandparents, is on student council at school,
and has several friends.
[16] On August 12, 2019, the trial court entered findings of fact and conclusions
thereon terminating Mother’s and Father’s parental rights. Relevant to Father’s
appeal, the trial court’s order concluded:
*****
17. The child has remained in the care of the grandparents since
January 2018.
18. The child worries about her parents but does not really
discuss them.
19. There has been no improvement and no progress in Mother
or Father’s condition from the time the child was removed to the
date of the fact-finding hearing in the instant matter. Based on
their history and the evidence, no progress is expected in the
foreseeable future.
20. Father has no income or means to support the child or
himself.
21. Mother and Father have shown little interest in this child’s
needs. They have made zero progress towards addressing the
issues which gave rise to the CHINS matter and this subsequent
case. The child is in a stable, loving home and is thriving there.
22. DCS has proven by clear and convincing evidence that
termination is in the Child’s best interest pursuant to Ind. Code §
31-35-2-4(C).
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23. DCS has proven by clear and convincing evidence that there
is a satisfactory plan for the care and treatment of the child
pursuant to Ind. Code § 31-35-2-4(D) if termination is granted,
and that plan is adoption.
24. The CHINS Court ordered adoption as the Permanency
Plan.
25. There was never a request for Guardianship as [a]
permanency plan during the CHINS, nor was a petition ever
filed.
*****
Appellant’s App. Vol. II pp. 64-65. Father now appeals.
Analysis
[17] Father appeals the termination of his parental rights. The Fourteenth
Amendment to the United States Constitution protects the traditional right of
parents to establish a home and raise their children. In re K.T.K. v. Indiana Dept.
of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A]
parent’s interest in the upbringing of [his or her] child is ‘perhaps the oldest of
the fundamental liberty interests recognized by th[e] [c]ourt[s].’” Id. (quoting
Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, of
course, that parental interests are not absolute and must be subordinated to the
child’s best interests when determining the proper disposition of a petition to
terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when
the parents are unable or unwilling to meet their parental responsibilities by
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failing to provide for the child’s immediate and long-term needs.’” In re K.T.K.,
989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied).
[18] Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter
findings of fact that support the entry of the conclusions required by subsections
(a) and (b)” when granting a petition to terminate parental rights. 8 Here, the
trial court did enter findings of fact and conclusions thereon in granting DCS’s
petition to terminate Father’s parental rights. When reviewing findings of fact
and conclusions thereon entered in a case involving the termination of parental
rights, we apply a two-tiered standard of review. First, we determine whether
the evidence supports the findings, and second, we determine whether the
findings support the judgment. Id. We will set aside the trial court’s judgment
only if it is clearly erroneous. Id. A judgment is clearly erroneous if the
findings do not support the trial court’s conclusions or the conclusions do not
support the judgment. Id.
8
Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
delinquent child or CHINS, provide as follows:
(a) Except as provided in section 4.5(d) of this chapter, 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.
(b) If the court does not find that the allegations in the petition are true, the court shall
dismiss the petition.
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[19] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in part:
(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) The 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 local office
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
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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.
DCS must establish these allegations by clear and convincing evidence. In re
V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
[20] Father’s specific argument is that DCS failed to prove by clear and convincing
evidence that termination of the parent-child relationship was in the Child’s
best interests because guardianship was an alternative that the trial court could
have chosen instead of termination. Father, however, failed to present evidence
regarding the willingness or efforts of maternal grandparents to file a petition to
establish guardianship.
[21] In determining what is in the best interests of a child, the trial court is required
to look at the totality of the evidence. See In re A.B., 887 N.E.2d 158, 167-68
(Ind. Ct. App. 2008). In doing so, the trial court must subordinate the interests
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of the parents to those of the child involved. Id. at 168. Termination of a
parent-child relationship is proper where the child’s emotional and physical
development is threatened. K.T.K., 989 N.E.2d at 1235. A trial court need not
wait until a child is irreversibly harmed such that his or her physical, mental,
and social development is permanently impaired before terminating the parent-
child relationship. Id. Additionally, a child’s need for permanency is a “central
consideration” in determining the best interests of a child. Id.
[22] The uncontested findings demonstrate that Father failed to participate in many
services; Father had many positive or missed drug screens; and Father was
awaiting sentencing for a crime that involved illegal substances in the home
where the Child was present. Father was facing several years of incarceration.
Father, in his brief, argues that the maternal grandparents were willing to serve
as guardians for the Child. The evidence to support this statement came from
FCM Laston’s testimony where she indicated that, in September or October
2018, maternal grandparents were “open to either” adoption or guardianship.
Tr. Vol. II p. 102. On the other hand, testimony from the CASA demonstrated
uncertainty that grandparents were willing to be the Child’s guardians, instead
of proceeding with adoption. Father identified no evidence in the record that at
the time of the termination fact finding hearing on April 4, 2019, and June 13,
2019, that grandparents had filed or were willing to file a petition for
guardianship.
[23] Here, the trial court considered the potential for guardianship, but concluded
that the maternal grandparents had not filed a petition for guardianship, and the
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CHINS court found that adoption would be the permanency plan for the Child.
Regardless, the mere fact that a guardianship may have been available does not
entitle Father to relief. Based on the evidence in the record, we cannot say the
trial court’s decision is clearly erroneous.
Conclusion
[24] DCS presented sufficient evidence that termination was in the best interests of
the Child. We affirm.
[25] Affirmed.
Najam, J., and Vaidik, J., concur.
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