In the Matter of the Termination of the Parent-Child Relationship of S.B. (Minor Child) T.B. (Father) v. 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 24 2020, 10:24 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing 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
Danielle L. Flora Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 24, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of S.B. (Minor Child); 19A-JT-1465
T.B. (Father), Appeal from the Allen Superior
Court
Appellant-Respondent,
The Honorable Charles F. Pratt,
v. Judge
Trial Court Cause No.
Indiana Department of Child 02D08-1809-JT-336
Services,
Appellee-Petitioner.
Najam, Judge.
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Statement of the Case
[1] T.B. (“Father”) appeals the trial court’s termination of his parental rights over
his minor child, S.B. (“the Child”). 1 Father raises a single issue for our review,
which we restate as the following two issues:
1. Whether the trial court’s finding that Father was not
benefitting from services is supported by the record.
2. Whether the trial court clearly erred when it concluded
that the conditions that resulted in the Child’s removal
from Father’s care will not be remedied.
[2] We affirm.
Facts and Procedural History
[3] On September 27, 2018, the Indiana Department of Child Services (“DCS”)
filed a petition to terminate Father’s parental rights over the Child. The trial
court held a fact-finding hearing on DCS’s petition, after which it entered the
following undisputed facts with respect to Father’s relationship with the Child:
5. . . . [T]here was a physical altercation between the Mother
and a man on or about July 12, 2016. The incident of domestic
violence occurred in the presence of the [Child and his sibling]
and the [C]hild’s sibling was struck. On or about August 16,
2016, another incident of domestic violence took place in the
1
The Child’s mother has separately appealed the termination of her parental rights. Although our motions
panel denied a request to consolidate the appeals, the appeals were assigned to the same writing panel, and
we have decided each appeal on the same date.
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presence of the [C]hild’s sibling. The Court found that Father
did not take any steps to protect the safety and the welfare of the
[C]hild. The Mother was arrested for domestic battery. The
Mother tested positive for cocaine on or about November 11,
2016. The Father tested positive for cocaine as well. The [C]ourt
found that the [F]ather left his [C]hild in the Mother’s care with
full knowledge [of] the act of domestic violence occurring in the
home. In addition[,] the [C]ourt found [that] he had been
provide[d] services during the pendency of the case[;] he did not
participate in the referred services to address his drug use or for
housing assistance.
6. A Dispositional Hearing [in the ensuing child-in-need-of-
services (“CHINS”) case] was held on September 27, 2017[,] as
to [Father] . . . . The [C]hild . . . w[as] placed in licensed foster
care. The Dispositional Decree incorporated a Parent
Participation Plan that required the Father to[ comply with
fifteen different requirements].
* * *
8. The . . . Father w[as] granted supervised visitation with the
[C]hild.
9. A Review Hearing was held on February 8, 2017. . . . The
Father, the Court found, had failed to secure a psychological
evaluation or participate in therapy. He also tested positive for
illegal substances.
* * *
22. From the testimony of [DCS] case manager Joshua Meyer,
the Court finds that the Father was referred for a diagnostic
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evaluation at Park [C]enter in 2016. A second assessment was
recommended.
23. The [DCS] referred the Father to Dr. David Lombard, a
forensic psychologist[,] for a psychological assessment. From
Dr. Lombard’s testimony[,] the [C]ourt finds that the Father
completed the evaluation on January 22, 2019. He diagnosed the
Father as suffering from Cocaine Use Disorder and Personality
Disorder NOS. He also included a rule out diagnosis of Bipolar
Disorder, Antisocial Disorder[,] and Borderline Personality
Disorder. Dr. Lombard referred the Father for substance abuse
treatment and weekly mental health counseling.
24. Dr. Lombard testified that his diagnosis was preliminary
owing to concerns with regard to the Father’s responses to the
testing. He recommended that the Father return to be tested
again so that he might answer in a more open and honest
manner. The Father has refused to retake the tests.
25. From the testimony of John Martin, a toxicologist with
[R]edwood Toxicology, the [C]ourt finds that the Father has
tested positive for cocaine or its metabolite as recently as
February 27, 2019.
26. From the testimony of . . . Meyer, the [C]ourt finds that
multiple service referrals were made for the Father but he has
only recently begun home based and addiction services.
27. The Father was referred for individual counseling at
C.A.P., Inc. From the testimony of Sheila Miano of that
agency[,] he has not enrolled in individual counseling. He has
completed a substance abuse assessment and was referred for
services.
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***
29. On March 25, 2019[,] the Father testified that his
participation in group therapy has improved since the date Brad
Snider[, a licensed addictions counselor,] testified.
30. The Father admitted to cocaine use as recently as March 4,
2019.
31. The Father resides with his parents. From the testimony
of . . . Meyer, the Father’s parents have also had issues with
regard to child neglect. The Father was referred for home based
services at C.A.P., Inc. From the testimony of home base case
manager[] Pat Geimer, the Court finds that the Father has not
yet completed the goals.
32. The [C]hild has been placed outside the home under a
dispositional decree for more than six (6) months.
33. From the testimony [of] Tracy Kearns, the [C]hild’s
licensed foster care provider[,] the Court finds that the [C]hild
had multiple screaming temper tantrums a day. She is no longer
displaying the extreme behaviors.
34. Should parental rights be terminated[,] [DCS] has an
appropriate plan, that being adoption. The [C]hild is in a
potential pre-adoptive home.
35. The [C]hild’s Guardian ad Litem has concluded that the
[C]hild’s best interests are served by the termination of parental
rights. In support of his conclusion[,] he testified that the parents
have not demonstrated and continuity [sic] of life stability. He
also cited the parents’ recent positive drug screens.
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Appellant’s App. Vol. 2 at 13-17 (citations to the record omitted). The court
also found the following fact, which is disputed in this appeal:
28. Licensed addictions counselor Brad Snider has had the
Father in his group therapy program to address the Father[]’s
addictions. The Father has not documented any attendance in
any 12-step or similar support group as he is required and is not
participating in group sessions in any substantial way. Therapist
Snider opined that Father is not benefitting from services. He
was placed on a zero tolerance risk assessment/level.
Id. at 17.
[4] In light of its findings, the court concluded as follows:
By the clear and convincing evidence[,] the [C]ourt determines
that there is a reasonable probability that [the] reasons that
brought about the [C]hild’s placement outside the home will not
be remedied. . . . The Father has only recently begun services
despite having been referred [f]or services since the onset [of] the
underlying CHINS case. At the [f]actfinding [hearing,] the
[C]ourt found that the Father was not cooperating with services
provided to him through provisional orders of this [C]ourt. At
the Review Hearing of February 8, 2017, the Court found that he
was not in compliance. Similar findings were entered in the
January 17, 2018[,] Review Order and in the Permanency Order
of July 10, 2018. His substance abuse addictions therapist has
reported that the Father is not benefitting from services. The
Father has continued to test positive for cocaine as recently as
March 4, 2019. He does not have independent housing for the
[C]hild despite being offered assistance since the onset of the
underlying CHINS case.
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Id. at 18. The court further concluded that DCS had a satisfactory plan in place
for the care and treatment of the Child and that termination of Father’s parental
rights was in the Child’s best interests. This appeal ensued.
Discussion and Decision
Standard of Review
[5] Father appeals the trial court’s termination of his parental rights over the Child.
The court’s termination order recites findings of fact and conclusions thereon
following an evidentiary hearing before the court. As our Supreme Court has
explained, in such circumstances
[w]e affirm a trial court’s termination decision unless it is clearly
erroneous; a termination decision is clearly erroneous when the
court’s findings of fact do not support its legal conclusions, or
when the legal conclusions do not support the ultimate decision.
We do not reweigh the evidence or judge witness credibility, and
we consider only the evidence and reasonable inferences that
support the court’s judgment.
M.H. v. Ind. Dep’t of Child Servs. (In re Ma.H.), 134 N.E.3d 41, 45 (Ind. 2019)
(citations omitted).
[6] “Parents have a fundamental right to raise their children—but this right is not
absolute.” Id. “When parents are unwilling to meet their parental
responsibilities, their parental rights may be terminated.” Id. at 45-46. To
terminate parental rights, Indiana Code Section 31-35-2-4(b)(2) (2019) requires
DCS to demonstrate, as relevant here, that “[t]here is a reasonable probability
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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.”
Issue One: Whether Finding 28 Is Supported By The Record
[7] Father first challenges the trial court’s finding number 28. We will not set aside
the trial court’s factual findings unless those findings are clearly erroneous. Ind.
Trial Rule 52(A). A finding is clearly erroneous “when there is no evidence
supporting the finding[] . . . .” Moriarity v. Ind. Dep’t of Nat. Res., 113 N.E.3d
614, 622 (Ind. 2019). In our review, “we consider only the evidence and
reasonable inferences that support the court’s judgment.” In re Ma.H, 134
N.E.3d at 45.
[8] In its finding number 28, the court found, in relevant part, that “Therapist
Snider opined that Father is not benefitting from services.” Appellant’s App.
Vol. 2 at 17. According to Father, the court’s statement “is not supported by
the record.” Appellant’s Br. at 13. But Father is incorrect. In his testimony,
Snider stated that he “find[s] it hard to say that [Father is] benefitting” from
addiction-based services in light of “the fact that [Father is] not even abstinent.”
Tr. Vol. II at 156. And Father does not dispute that he continued to use illegal
substances throughout the proceedings before the trial court. Accordingly, we
cannot say that the court’s finding that Father was not benefitting from services
is clearly erroneous.
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Issue Two: Whether The Conditions That Resulted
In Removal Will Not Be Remedied
[9] We next consider Father’s argument that the trial court clearly erred when it
concluded that the conditions that resulted in the Child’s removal will not be
remedied. In determining whether the conditions that led to a child’s
placement outside the home will not be remedied, a trial court is required to (1)
ascertain what conditions led to the child’s removal or placement and retention
outside the home; and (2) determine whether there is a reasonable probability
that those conditions will not be remedied. R.C. v. Ind. Dep’t of Child Servs. (In re
K.T.K.), 989 N.E.2d 1225, 1231 (Ind. 2013). Here, there is no dispute that the
Child was removed from the care of her mother due the mother’s domestic
violence and drug use, and DCS did not then place the Child with Father
because of Father’s own drug use and unstable housing and because Father had
known of the mother’s domestic-violence issues yet permitted the Child to be in
her home anyway.
[10] In order to determine whether there is a reasonable probability that the
conditions that resulted in removal will not be remedied, the court should assess
a parent’s “fitness” at the time of the termination hearing, taking into
consideration any evidence of changed conditions. E.M. v. Ind. Dep’t of Child
Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). The court must weigh any
improvements the parent has made since removal against the parent’s “habitual
patterns of conduct to determine whether there is a substantial probability of
future neglect or deprivation.” Id. When making such decisions, courts should
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consider evidence of a “parent’s prior criminal history, drug and alcohol abuse,
history of neglect, failure to provide support, lack of adequate housing, and
employment.” Evans v. St. Joseph Cty. Off. of Fam. & Child. (In re A.L.H.), 774
N.E.2d 896, 990 (Ind. Ct. App. 2002).
[11] The court did not clearly err when it concluded that the conditions that resulted
in Child’s placement away from Father will not be remedied. The evidence
demonstrates that Father continued to test positive for illegal substances
throughout the proceedings before the trial court. Indeed, Father does not
dispute that he tested positive for cocaine on at least two different occasions
after DCS had filed its petition for the termination of his parental rights. Father
also failed to successfully complete recommended services. He repeatedly
failed to comply with services during the underlying CHINS proceedings and
had only recently begun participating in services near the time of the fact-
finding hearing on the termination petition. Moreover, as Snider testified,
Father was not benefitting from services. And while Father asserts on appeal
that he has stable housing with his parents, he does not dispute the trial court’s
finding that “Father’s parents have also had issues with regard to child neglect.”
Appellant’s App. Vol. 2 at 17.
[12] The evidence supports the trial court’s findings, and the findings support the
court’s conclusion that the conditions that resulted in the Child’s removal will
not be remedied. Father’s argument on appeal is simply a request for this Court
to reweigh the evidence, which we cannot do. The trial court did not clearly err
when it concluded that there is a reasonable probability that the conditions that
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resulted in the Child’s removal or the reasons for placement outside of Father’s
home will not be remedied, and we affirm the trial court’s termination of
Father’s parental rights over Child.
[13] Affirmed.
Vaidik, J., and Tavitas, J., concur.
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