In re the Termination of the Parent-Child Relationship of: A.M. (Minor Child) and W.M. (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 28 2020, 10:47 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
Alexander W. Robbins Curtis T. Hill, Jr.
Public Defender - Morgan County Attorney General of Indiana
Bloomington, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the February 28, 2020
Parent-Child Relationship of: Court of Appeals Case No.
19A-JT-2035
A.M. (Minor Child) Appeal from the Morgan Circuit
and Court
The Honorable Matthew G.
W.M. (Father), Hanson, Judge
Appellant-Respondent, Trial Court Cause No.
55C01-1903-JT-90
v.
Indiana Department of Child
Services,
Appellee-Petitioner,
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2035 | February 28, 2020 Page 1 of 19
Case Summary and Issue
[1] W.M. (“Father”) appeals the termination of his parental rights to his child and
presents the sole issue of whether the juvenile court’s order terminating his
parental rights was clearly erroneous. Concluding it was not, we affirm.
Facts and Procedural History
[2] Father and J.P. (“Mother”), now deceased, are the biological parents of A.M.,
born June 18, 2007 (“Child”). The Department of Child Services (“DCS”)
became involved in this case in 2016. At that time, Mother had legal custody of
Child and shared another child with her boyfriend, M.G. The four of them
lived together. On November 1, 2016, DCS received a report that M.G. and his
sister snorted heroin in the bedroom and M.G. overdosed; Mother was in the
other room with Child’s half-sibling and Child was at school. DCS believed
Mother was sober and an appropriate parent, and Mother agreed to enter into
an informal adjustment to address M.G.’s substance abuse issues. Father was a
“non-offending parent or at least extraneous” to the case and therefore, was not
part of the informal adjustment. Transcript at 20.
[3] On December 14, 2016, DCS filed a petition alleging Child was a child in need
of services (“CHINS”).1 Around February 2017, Father became involved with
1
Initially, filings named Child as “A.P.” but Child’s correct name is “A.M.” See Tr. at 19; see also
Supplemental Exhibit Index at 3-15, 39-41.
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DCS in another matter concerning his wife and his wife’s two children. DCS
began an informal adjustment due to Father’s use of methamphetamine and
determined that Father’s wife was an appropriate caregiver for her children.
Father entered into an informal adjustment and agreed to participate in services
to address his substance abuse issues. Father completed a substance abuse
evaluation at Centerstone on February 7, which recommended substance abuse
treatment. Despite attempts to contact Father, he never participated in any
recommended services and was discharged. Eventually, Father and his wife
separated and divorced; DCS successfully closed out the informal adjustment
with Father’s wife.
[4] An initial/detention hearing for Child was held in February 2017, and the
juvenile court adjudicated Child a CHINS on March 28, 2017. Following a
dispositional hearing on April 4 at which Father failed to appear, the juvenile
court ordered Father to (among other things): maintain weekly contact with the
DCS family case manager (“FCM”); timely enroll in recommended programs;
obtain and maintain suitable housing and income; refrain from drug use; obey
the law; submit to random drug screens; and complete a substance abuse
assessment and follow all recommended treatment. See Supplemental Exhibit
Index at 64-67. At the time, Child remained in Mother’s care.
[5] The juvenile court held a periodic case review hearing on July 10 and ordered
Child to remain in Mother’s care. Father failed to appear. On July 13, Father
reached out to the DCS FCM and asked what he needed to do to move forward
in the CHINS case; the FCM informed Father he needed to participate in the
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recommended services but Father stated he did not want to participate in group
services. From July 13, 2017 to September 24, 2018, Father ceased all contact
with the FCM despite numerous attempts to contact him through his parents,
Child, and Mother.
[6] Due to Mother’s own substance abuse issues, Child was removed from
Mother’s care on July 24, 2017 and placed with her maternal grandparents.
Later, on October 3, Father completed a new substance abuse evaluation at
Centerstone during which he disclosed that he has been using
methamphetamine daily for the last three or four years and he used as recently
as three days prior to the evaluation. Centerstone referred Father to an
intensive outpatient program (“IOP”)2 program – an addictions and parenting
group, which focuses on parenting skills and maintaining sobriety. Father
attended five sessions but missed eleven. Due to Father’s non-compliance with
the program and positive drug screens, he was discharged from services.
[7] Following a review hearing on November 2, the juvenile court found that
Father: had not complied with Child’s case plan; tested positive for
methamphetamine; failed to visit Child; and had not cooperated with DCS. See
id. at 96-97. In February 2018, the juvenile court found that Father “is not
participating in this case.” Id. at 99. A permanency hearing was held on May
3, 2018, and the juvenile court again found that Father was missing and not
2
Although not explicitly defined in the record, we believe “IOP” refers to an intensive outpatient program.
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participating in the case. The court subsequently entered an order changing
Child’s permanency plan from reunification to reunification with a concurrent
plan of adoption. Father failed to appear for each of these hearings.
[8] As of the August 9 review hearing, Father was still missing and non-compliant
with the case plan. However, the FCM learned that Father had an active
criminal case and successfully made contact with Father on September 24 at the
courthouse. At the time, Father stated he would engage in services and
“want[ed] to fight for his daughter.” Tr. at 25. However, Father never reached
out to re-engage in services and again ceased contact with the FCM. The
juvenile court held another review hearing on December 12 and again, Father
failed to appear and the juvenile court found Father had been non-compliant
with the case plan, had not enhanced his ability to fulfill his parental
obligations, and had not visited Child. See Supp. Ex. Index at 106-07.
[9] In January 2019, Father was arrested on multiple counts of substance abuse
related charges – possession of methamphetamine, possession of paraphernalia,
possession of a narcotic drug, unlawful possession of a syringe, and maintaining
a common nuisance. On March 1, 2019, DCS filed its petition for the
involuntary termination of Father’s parental rights. While incarcerated, Father
met with the FCM and indicated he was interested in participating in services.
However, Father is not able to participate in any DCS-offered services while
incarcerated because jail policy no longer allows service providers to work one
on one in the jail.
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[10] The juvenile court held a termination hearing on May 15, 2019; however, the
juvenile court was informed that Mother had recently died. Therefore, the
juvenile court removed Mother from the case and the matter remained set for a
full termination hearing. The fact-finding hearing was held on August 1, 2019
during which Father testified that he has completed several courses while
incarcerated. Following the hearing, the juvenile court entered an order
terminating Father’s parental rights and found, in pertinent part:
147) The main issues facing the [C]hild at the time of removal
included drug use and a lack of supervision on the part of the
[M]other.
148) [A]s time progressed [M]other’s issues continued but
[F]ather simply refused to be engaged.
149) By not engaging in any services whatsoever he simply
walked away from his obligations to provide any sort of security
or support and leave [sic] the issue of his daughter being raised to
others.
150) [F]ather was tangentially involved with his wife and his
other children with DCS and apparently was failing drug tests
and not participating with those issues around the time this case
began.
151) It is foolish to believe that [F]ather did not understand his
requirement to get involved in this case, foolish to believe he did
not know how to contact the DCS since he did on several
occasions and foolish to believe he ever had the intent to care for
this [C]hild.
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152) [A]round the time the [C]hild was taken from the [M]other
for drug use, the [F]ather did call one (1) time in July of 2017 and
stated a desire to be engaged.
153) Nothing ever came from that call.
154) Later in October of 2017 the [F]ather apparently did
become engaged for a very short period of time and then once
more disappeared.
155) [A]t no time thereafter for a period of over a year did the
[F]ather ever try to contact the DCS, inquire about where his
daughter was or how to see her, try to work with anyone to get
her back nor showed any indication of presenting himself as a
viable option to care for his [C]hild.
156) [O]nce in jail[, F]ather has suddenly found some direction
by passing some drug classes and indicating a desire to continue
classes if and when released.
157) Perhaps [F]ather is also driven by the fact of the recent
passing of the [M]other which has left the [C]hild with only one
viable parent.
158) It is not a far stretch to see that [F]ather has, like most in
jail and facing significant time, “found Jesus.”
159) [F]ather, only once caught and facing up to thirty (30)
years in jail, finally is trying to take some classes, has asked to
contact the [C]hild and for the first time since December of 2016
has shown any indication he intends to parent this [C]hild.
160) In the meantime, this [C]hild has suffered through her
[M]other missing visits, cutting herself, cutting off her hair to get
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her [M]other’s attention and finally her [M]other’s death all
while [F]ather has done absolutely nothing to help her.
161) The stability issue remains, the drug issues remain, the
unwillingness to step up and be a parent remains and
unfortunately this [C]hild is in a much worse position today than
she was at the time she was taken from her parents the first time.
162) [Child] has been through the trauma of living with others,
her [M]other dying and her [F]ather simply ignoring her. These
should not have to be the memories of a young lady that
desperately has been seeking the attention and love of her
parents.
163) The exact same dangers that were present for this [C]hild
when the CHINS case began still exist today and are perhaps
even more strongly present than ever before.
***
169) Father clearly has and has had issues with drugs for many
years that are unresolved.
170) [F]ather only is sober now due to a long incarceration.
171) [F]ather jumpstarted his efforts but failed on at least two
(2) occasions for a period of no more than a month to try and get
involved and these feeble attempts are untenable.
172) Father’s complete lack of involvement is simply
inexcusable and rises to the level of highest neglect.
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173) [F]ather’s feeble attempt to claim he had no notice or that
DCS did not contact him appropriately to get him involved falls
on deaf ears since [he] did contact them at least two (2) times,
was served with personal notice when the case started and even
worked with DCS in another case prior to this case being filed.
174) [T]his court is aware that criminal charges do not equal
convictions in criminal cases, there are strong indications that
[F]ather still has a substantial drug issue and/or that he will be in
some sort of penal facility/institution for some time whether to
fight these charges or if they are found true.
175) There was no indication or testimony that [F]ather even
has the ability to care for this [C]hild even if he is released.
176) This is indicated by the fact he never showed up for any
hearings, never got involved in this case, has been living in
apartments or barns during this case, has never indicated having
a job and simply presented no indication he has any plans to do
these things.
Appealed Order 10-13. Based on these findings, the juvenile court concluded
there is a reasonable probability that the conditions that led to Child’s removal
and continued placement outside of Father’s care will not be remedied. The
juvenile court also concluded that the continuation of the parent-child
relationship poses a threat to Child’s well-being and termination of Father’s
parental rights is in Child’s best interests. Father now appeals.
Discussion and Decision
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I. Standard of Review
[11] We begin, as we often do, by emphasizing that the right of parents to establish a
home and raise their children is protected by the Fourteenth Amendment to the
United States Constitution. In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App.
2004), trans. denied. Although parental rights are of a constitutional dimension,
they are not without limitation and the law provides for the termination of these
rights when parents are unable or unwilling to meet their parental
responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008). We
acknowledge that the parent-child relationship is “one of the most valued
relationships in our culture,” but also recognize 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.” Bester v. Lake Cty.
Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (internal quotations
omitted). The involuntary termination of one’s parental rights is the most
extreme sanction a court can impose because termination severs all rights of a
parent to his or her children. See In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.
2001), trans. denied. As such, termination is intended as a last resort, available
only when all other reasonable efforts have failed. Id. The purpose of
terminating parental rights is to protect children, not to punish parents. In re
D.D., 804 N.E.2d at 265.
[12] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge the credibility of witnesses. Lang v. Starke Cty. Office of Family
& Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied. Instead, we
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consider only the evidence most favorable to the judgment and the reasonable
inferences that can be drawn therefrom. Id. In deference to the trial court’s
unique position to assess the evidence, we will set aside its judgment
terminating a parent-child relationship only if it is clearly erroneous. In re
L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied; cert. denied, 534
U.S. 1161 (2002). Thus, if the evidence and inferences support the decision, we
must affirm. Id.[13] As required by Indiana Code section 31-35-2-8(c), the juvenile court entered
findings of fact and conclusions thereon. Therefore, we apply a two-tiered
standard of review: we first determine whether the evidence supports the
findings, then determine whether the findings support the judgment. Bester, 839
N.E.2d at 147. “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). A judgment is clearly erroneous only if the findings
do not support the court’s conclusions or the conclusions do not support the
judgment thereon. Id.II. Termination of Father’s Parental Rights
[14] Before an involuntary termination of parental rights may occur in Indiana, DCS
must allege and prove, in relevant part:
(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
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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). DCS must prove the foregoing elements by clear
and convincing evidence. Ind. Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140,
1144 (Ind. 2016). However, because subsection (b)(2)(B) is written in the
disjunctive the juvenile court need only find one of the three elements in that
subsection has been proven by clear and convincing evidence. See, e.g., In re
I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). If a juvenile court determines
the allegations of the petition are true, then the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[15] We begin by noting that Father does not challenge any of the juvenile court’s
findings; therefore, we accept the findings as true. McMaster v. McMaster, 681
N.E.2d 744, 747 (Ind. Ct. App. 1997). Father challenges the juvenile court’s
conclusion that a reasonable probability exists that the conditions that led to
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Child’s removal and continued placement outside of his care will not be
remedied. Specifically, Father argues this conclusion is erroneous because he
has demonstrated a “lengthy commitment . . . to better himself in an effort to
assume care for his daughter” by participating in several courses while
incarcerated. Appellant’s Brief at 9. We disagree.
[16] We engage in a two-step analysis to determine whether conditions will be
remedied: “First, we must ascertain what conditions led to [Child’s] placement
and retention in foster care. Second, we determine whether there is a
reasonable probability that those conditions will not be remedied.” In re K.T.K.,
989 N.E.2d 1225, 1231 (Ind. 2013) (quotation omitted). With respect to the
second step, a juvenile court assesses whether a reasonable probability exists
that the conditions justifying a child’s removal or continued placement outside
his parent’s care will not be remedied by judging the parent’s fitness to care for
the child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014).
Habitual conduct may include criminal history, drug and alcohol abuse, history
of neglect, failure to provide support, and lack of adequate housing and
employment, but the services offered to the parent and the parent’s response to
those services can also be evidence of whether conditions will be remedied.
A.D.S v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),
trans. denied. DCS “is not required to provide evidence ruling out all
possibilities of change; rather, it need establish only that there is a reasonable
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probability the parent’s behavior will not change.” In re I.A., 903 N.E.2d at
154.
[17] Here, Child was removed from Mother’s care due to her substance abuse issues;
however, Child remained outside of Father’s care due to his substance abuse
issues and failure to participate in services. We conclude there is ample
evidence in the record to support the juvenile court’s conclusion that there is a
reasonable probability that the conditions for Child’s continued placement,
namely Father’s substance abuse and related issues, will not be remedied.
[18] As demonstrated through the record, Father has failed to participate in this case
by not complying with services to address his substance abuse issues, not
attending court hearings, and not attending visitation with Child. Initially, as
part of an informal adjustment, Father completed a substance abuse evaluation
at Centerstone on February 7, 2017. Melissa Oran, DCS liaison at Centerstone,
testified that treatment was recommended based on the evaluation; however,
despite numerous attempts to contact Father, he never participated in any
treatment. See Tr. at 14.
[19] FCM Wendy Tolliver3 has been involved in Father’s case since its inception in
November 2016. In July 2017, Father reached out to Tolliver and asked what
he needed to do to move forward in the case. Tolliver stated that he needed to
participate in services and “laid out everything that was recommended for
3
The record establishes that Ms. Tolliver previously went by Wendy Pickett.
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him.” Id. at 24. However, Father stated he would not participate in groups
“because he did not want people in town knowing his business.” Id. at 22.
Father subsequently ceased all contact with Tolliver until September 2018 –
over fourteen months later. During this time, Tolliver attempted to contact
Father through his parents, Child, and Mother, but was unsuccessful. It was
not until Tolliver discovered that Father had an active criminal case that she
was able to make contact with Father on September 24, 2018 by going to the
courthouse. At that time, Father again indicated he would engage in services
and “want[ed] to fight for his daughter.” Id. at 25. After this interaction,
Father did not reach out to Tolliver, never engaged in services, and again
ceased all contact with her.
[20] In October 2017, Father again completed a substance abuse assessment at
Centerstone with Ashley Risk, a crisis access therapist. During the evaluation,
Father indicated he has been using methamphetamine daily for the last three to
four years and had used three days prior to the evaluation. Based on Father’s
history, Risk acknowledged an IOP was “definitely warranted” and Father
needed to complete the recommended treatment. Id. at 11. Risk referred
Father to an IOP; he participated in five substance use and parenting group
sessions but missed eleven. Ultimately, Father did not complete the program
and was discharged from the group in November 2017 due to his
“[n]oncompliance with attendance and then there were positive [drug] screens.”
Id. at 15. At the fact-finding hearing, Oran testified that Father did not make
any progress with respect to obtaining and maintaining sobriety and
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consequently, toward reunification with Child. Tolliver also testified that
Father did not make any kind of progress with respect to completing services
and addressing his original issues. She further stated that substance abuse
continues to be an issue for Father and there is “no proof that [Father] has
remedied his substance abuse issues. He’s currently in jail on charges related to
substance abuse. [A]nd has throughout the life of this case continued to receive
charges related to substance abuse.” Id. at 30.
[21] Father’s criminal history also supports the juvenile court’s conclusion there is a
reasonable probability Father will not remedy his substance abuse problems.
Since this case began in November 2016, Father has been charged with multiple
criminal charges related to his unresolved substance abuse issues, including
multiple counts of possession of methamphetamine, possession of
paraphernalia, possession of a narcotic drug, unlawful possession of a syringe,
and maintaining a common nuisance. Father was arrested in January 2019 and
has remained incarcerated since.
[22] Around that time, Father’s case was transferred to FCM Alexa Smith. In
March 2019, Smith met with Father and he stated he was interested in
participating in services. Smith then submitted referrals to Ireland Homebased
Services for fatherhood engagement and individual therapy; however, the
referrals were rejected because jail policy no longer allows service providers to
work one on one in the jail. Therefore, Father is not able to participate in any
DCS-offered services while incarcerated. At the fact-finding hearing, Smith
testified that in her discussions with Father, he indicated he was potentially
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facing up to thirty years in prison. More recently, Father told Smith he was
trying to get a plea agreement that would allow him to join the Indiana Dream
Team, which is a three-year program. Smith testified that Father’s “criminal
charges indicate . . . ongoing substance abuse issues. [And] from the time he
wasn’t incarcerated . . . I would have concerns for him to be able to maintain
his sobriety outside of the incarceration.” Id. at 45. Ultimately, Smith opined
that the issues prompting DCS involvement have not been resolved.
[23] Furthermore, Father failed to attend court hearings and failed to consistently
visit Child. Tolliver testified that from February to July 2017, Father attended
supervised visitation but “[f]rom that point forward because he was completely
non-compliant in services and not participating in this case, he was not
attending court[,] we were no[t] offering him visitation any longer.” Id. at 27.
[24] Father contends he has made progress by completing several substance abuse
and religious courses available to him while incarcerated, including Mothers
Against Methamphetamine and Reformers Institutional Program classes. See
Exhibit Index at 5-20. Given Father’s completion of these courses, he argues
his case is similar to K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641 (Ind. 2015),
in which our supreme court reversed the termination of an incarcerated father’s
parental rights where he made “substantial efforts towards bettering his life” by
participating in numerous programs available to him during his incarceration.
Id. at 648. In K.E., the father’s release was pending, he had completed twelve
programs that were voluntary and did not result in sentence reductions, and he
began participating in AA and NA. Id. at 648-49. In addition, the father
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testified that he was sober, prepared to be a good father, would like to receive
additional services from DCS upon his release, and stated even if his child is
adopted, he hoped to remain in his life as much as possible. Id. at 649. Our
supreme court held that despite the father’s criminal and substance abuse
history, “[g]iven the substantial efforts that [the father] is making to improve his
life by learning to become a better parent, . . . it was not proven by clear and
convincing evidence that [the father] could not remedy the conditions for [his
child’s] removal.” Id.
[25] Father’s situation is distinguishable from the father’s in K.E. Although we
acknowledge Father is unable to participate in DCS-offered services while
incarcerated, his recent completion of these programs alone, while
commendable, does not rise to the level of progress in K.E. nor does it negate
years of his non-compliance. Critically, there is no evidence that Father’s
release is pending. To the contrary, all of his criminal cases remain unresolved
and he faces potentially up to thirty years of incarceration, if convicted.
Moreover, Father has not demonstrated the ability to remain sober when he is
not incarcerated.
[26] We have often noted that evidence of a parent’s pattern of unwillingness or lack
of commitment to address parenting issues and to cooperate with services
demonstrates the requisite reasonable probability that the conditions will not
change. Lang, 861 N.E.2d at 372; see also A.F. v. Marion Cty. Office of Family &
Children, 762 N.E.2d 1244, 1252 (Ind. Ct. App. 2002) (“A parent’s failure to
appear for assessments and court hearings reflects ambivalence, and the failure
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to attend parenting classes reflects an unwillingness to change existing
conditions.”), trans. denied. Such is the case here. In sum, we conclude there is
sufficient evidence in the record establishing Father’s failure to participate in the
case plan, preventing him from making any progress toward reunification. For
these reasons, we conclude the juvenile court’s findings supported its
conclusion.4
Conclusion
[27] We conclude there is sufficient evidence to support the juvenile court’s order
terminating Father’s parental rights as to Child. Accordingly, the judgment of
the juvenile court is affirmed.
[28] Affirmed.
Bradford, C.J., and Altice, J., concur.
4
Having determined that DCS met its burden of showing that the conditions that resulted in Child’s removal
and continued placement outside of Father’s care will not be remedied, we need not address the juvenile
court’s conclusion that DCS also met its burden of proving that the continuation of the parent child
relationship poses a threat to Child’s well-being. K.T.K., 989 N.E.2d at 1234.
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