In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.G. (Minor Child) and K.R. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 18 2020, 8:41 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
Anna Onaitis Holden Curtis T. Hill, Jr.
Zionsville, Indiana Attorney General
Thomas J. Flynn
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary February 18, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of A.G. (Minor 19A-JT-2091
Child) Appeal from the Marion Superior
and Court
The Honorable Danielle Gaughan,
K.R. (Father), Judge Pro Tempore
Appellant-Respondent, The Honorable Scott Stowers,
Magistrate
v.
Trial Court Cause No.
49D09-1901-JT-2
Indiana Department of Child
Services,
Appellee-Petitioner
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Crone, Judge.
Case Summary
[1] K.R. (“Father”) appeals a trial court order terminating his parental relationship
with his son, A.G. (“Child”). Finding that he has failed to establish clear error,
we affirm.
Facts and Procedural History
[2] The facts most favorable to the judgment are as follows. Child was born on
September 16, 2016, and was removed from his mother (“Mother”) three days
later. As an infant, he was placed in relative placement with a cousin
(“Cousin”), where he has remained since. Shortly after Child’s removal, the
Indiana Department of Child Services (“DCS”) filed a petition seeking to have
him adjudicated a child in need of services (“CHINS”), due to substance abuse
and domestic violence in the home. At the time of the initial CHINS petition,
Father was incarcerated, and it was believed that another man was Child’s
father. DCS subsequently amended the CHINS petition to include Father, and
Father was ultimately found to be Child’s biological father. Mother admitted to
the CHINS allegations, and Father waived his right to a factfinding hearing.
The trial court found Child to be a CHINS and ordered Father to complete
Father Engagement and domestic violence services and to submit to random
drug screens.
[3] Father completed a domestic violence assessment and was ordered to complete
a twenty-six-week program with Batterers Intervention. He failed to appear for
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the first four sessions and was unsuccessfully discharged. He did not participate
in parenting time through DCS but saw Child when Child visited various
relatives. He did not participate in drug screens and was in and out of
incarceration during the proceedings below for drug-related offenses and
resisting law enforcement.
[4] In January 2019, DCS changed the permanency plan to adoption and filed a
petition for termination of parental rights. Three months before the July 2019
factfinding hearing, Father began Father Engagement and made it about
halfway through the program. At the factfinding hearing, DCS family case
manager (“FCM”) Parrish Jones and guardian ad litem (“GAL”) Annabelle
Henriquez recommended termination and adoption as being in Child’s best
interests. The trial court issued an order with findings of fact and conclusions
thereon, terminating Mother’s and Father’s parental relationships with Child. 1
Father now appeals the termination order. Additional facts will be provided as
necessary.
Discussion and Decision
[5] Father challenges the sufficiency of the evidence supporting the trial court’s
judgment terminating his parental relationship with Child. When reviewing a
trial court’s findings of fact and conclusions thereon in a case involving the
termination of parental rights, we first determine whether the evidence supports
1
Mother is not participating in this appeal.
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the findings and then whether the findings support the judgment. In re E.M., 4
N.E.3d 636, 642 (Ind. 2014). We will set aside the trial court’s judgment only if
it is clearly erroneous. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d
143, 147 (Ind. 2005). We neither reweigh evidence nor judge witness
credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the evidence and
inferences most favorable to the judgment. Id. “[I]t is not enough that the
evidence might support some other conclusion, but it must positively require
the conclusion contended for by the appellant before there is a basis for
reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).
Where the appellant does not specifically challenge any of the trial court’s
findings, they stand as proven, and we simply determine whether the
unchallenged findings are sufficient to support the judgment. T.B. v. Ind. Dep’t
of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied; see also
McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (unchallenged
findings are accepted as true).
[6] In Bester, our supreme court stated,
The Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and
raise their children. A parent’s interest in the care, custody, and
control of his or her children is perhaps the oldest of the
fundamental liberty interests. Indeed the parent-child
relationship is one of the most valued relationships in our culture.
We recognize of course that parental interests are not absolute
and must be subordinated to the child’s interests in determining
the proper disposition of a petition to terminate parental rights.
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Thus, parental rights may be terminated when the parents are
unable or unwilling to meet their parental responsibilities.
839 N.E.2d at 147 (citations, quotation marks, and alteration omitted).
[7] To obtain a termination of a parent-child relationship, DCS is required to
establish in pertinent 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.
….
(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
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(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2).
[8] In recognition of the seriousness with which we address parental termination
cases, Indiana has adopted a clear and convincing evidence standard. Ind.
Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367,
377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need
not reveal that the continued custody of the parents is wholly inadequate for the
child’s survival. Rather, it is sufficient to show by clear and convincing
evidence that the child’s emotional and physical development are threatened by
the respondent parent’s custody.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.
2013) (citation omitted). “[I]f the court finds that the allegations in a
[termination] petition … are true, the court shall terminate the parent-child
relationship.” Ind. Code § 31-35-2-8(a) (emphasis added).
[9] Father does not raise any challenge to the trial court’s conclusions concerning
the reasonable probability of unremedied conditions or threat to Child’s well-
being but asserts only that the trial court clearly erred in concluding that
termination is in Child’s best interests. To determine what is in the best
interests of a child, we must look at the totality of the circumstances. In re
A.W., 62 N.E.3d 1267, 1275 (Ind. Ct. App. 2016). Although not dispositive,
permanency and stability are key considerations in determining the child’s best
interests. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “A parent’s historical
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inability to provide a suitable environment along with the parent’s current
inability to do the same supports a finding that termination of parental rights is
in the best interests of the child[].” In re A.P., 981 N.E.2d 75, 82 (Ind. Ct. App.
2012) (quoting Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366,
373 (Ind. Ct. App. 2007), trans. denied). Likewise, “the testimony of service
providers may support a finding that termination is in the child’s best interests.”
In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010), trans. dismissed.
[10] FCM Jones and GAL Henriquez both recommended termination and adoption
as being in Child’s best interests. To the extent that Father challenges GAL
Henriquez’s lack of personal interaction with Child, he invites us to reweigh
evidence and reassess witness credibility, which we may not do. That said, we
note the trial court’s finding that Father circumvented the court-authorized
parenting time by disregarding it and visiting Child unofficially at family
gatherings. In so doing, Father facilitated any shortage of information that
service providers may have had concerning his relationship with Child. The
same can be said about Father’s claim that there is a dearth of information in
the record concerning Child’s needs, as we believe that Father’s pattern of
avoidance and noncooperation with DCS has contributed to any such lack of
documentation.
[11] Moreover, the trial court’s unchallenged findings, which stand as proven,
include the following: that Father requested that DCS conduct his drug screens
at his place of employment but refused to disclose where he worked and thus
submitted to no drug screens; that Father had sufficient time when not
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incarcerated (nearly one and a half years) to complete services and failed to do
so; 2 that Father lacks stable housing and resides with friends; that Father’s
sobriety and stability are major concerns; that Child does not know Father and
the two are not bonded; and that Child is bonded with Cousin and needs a
stable and permanent home, which Cousin provides. Appealed Order at 2-3.
The totality of the circumstances shows a very young boy who is bonded in his
relative placement, where he has resided since infancy, and a father whose
historical and current patterns indicate an inability to provide Child with a
stable, safe, and permanent home. The evidence and unchallenged findings are
sufficient to support the trial court’s conclusion that termination of Father’s
parental relationship with Child is in Child’s best interests. Because Father has
failed to establish clear error by the trial court, we affirm.
[12] Affirmed.
May, J., and Pyle, J., concur.
2
We find Father’s argument that DCS failed to provide adequate service referrals and contact information
for scheduling services to be a nonstarter, as the record shows that DCS made referrals and re-referrals for
Father and provided him bus passes to facilitate his attendance.
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