In the Matter of the Involuntary Termination of the Parent-Child Relationship of T.R. and M.R. (Minor Children) and B.R. (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
regarded as precedent or cited before any Jun 16 2020, 11:17 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
David W. Stone, IV Katherine A. Cornelius
Anderson, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary June 16, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of T.R. and M.R. 19A-JT-2918
(Minor Children) Appeal from the Madison Circuit
and Court
The Honorable George Pancol,
B.R. (Father), Judge
Appellant-Respondent, Trial Court Cause Nos.
48C02-1902-JT-49, - 50
v.
Indiana Department of Child
Services,
Appellee-Petitioner
Crone, Judge.
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Case Summary
[1] B.R. (Father) appeals the involuntary termination of his parental rights to his
minor children T.R. and M.R. We affirm.
Facts and Procedural History
[2] The trial court’s relevant findings of fact reveal that A.R. (Mother) 1 and Father
are the biological parents of T.R., born on March 3, 2014, and M.R., born on
March 18, 2017 (the Children). The Indiana Department of Child Services
(DCS) filed a child in need of services (CHINS) petition in August 2017 due to
neglect allegations after Mother abandoned the Children by leaving them with a
boyfriend she had known for only a matter of weeks and not returning. Mother
was reportedly “shooting up pretty bad” and nobody could locate her.
Appellant’s App. Vol. 2 at 47, 55. Father was incarcerated at the time. Neither
parent appeared for the initial hearing, and the trial court ordered the Children
detained and placed in foster care.
[3] Thereafter, Father waived factfinding and Mother subsequently admitted the
CHINS allegations. Following a dispositional hearing, and pursuant to court
order, Father was directed to participate in services, including fatherhood
engagement class, substance abuse treatment, random drug screens, home-
based case work, and visitations with the Children (Mother was ordered to
participate in similar services). At the six-month review hearing, the trial court
1
Although Mother’s parental rights were also terminated, she is not a party to this appeal. Consequently, we
will recite facts primarily regarding Father.
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determined that both Mother and Father had “partially complied” with the
Children’s case plan. Appealed Order at 3. Regarding Father, the court noted
that he was enrolled in a drug treatment program through the Department of
Correction (DOC) and was meeting with a fatherhood engagement worker.
Accordingly, reunification remained the permanency plan for the Children.
However, at the time of the one-year review hearing, both Mother and Father
were incarcerated. Regarding Father, the trial court determined that Father had
failed to comply with the Children’s case plan and had not had any visits with
the Children.
[4] In February 2019, after the Children had been removed from their parents’ care
for eighteen months, the trial court held another review hearing. The trial court
determined that neither parent had complied with services. Indeed, Father had
done nothing to improve his situation or to enhance his ability to parent the
Children. Rather, he engaged in behavior in clear opposition to that goal.
Father had been removed from the Edinburgh Correctional Facility for a
serious conduct violation and moved to the Pendleton Correctional Facility.
Specifically, he was charged with and found guilty of conspiracy and attempted
drug trafficking by the DOC. The permanency plan for the Children was
changed from reunification to termination.
[5] DCS filed petitions to terminate both Mother’s and Father’s parental rights on
February 19, 2019. The termination factfinding hearing took place over several
days, concluding on August 13, 2019. On September 23, 2019, the court
entered its termination order which included extensive and detailed findings of
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fact and conclusions thereon. In sum, the trial court concluded that: (1) there
is a reasonable probability that the conditions that resulted in the Children’s
removal and continued placement outside the home will not be remedied by
either Mother or Father; (2) there is a reasonable probability that continuation
of the parent-child relationship between each parent and the Children poses a
threat to the Children’s well-being; (3) termination of the parent-child
relationship between both parents and the Children is in the Children’s best
interests; and (4) DCS has a satisfactory plan for the Children’s care and
treatment, which is adoption. Accordingly, the trial court determined that DCS
had proven the allegations of the petitions to terminate by clear and convincing
evidence and therefore terminated both Mother’s and Father’s parental rights.
Only Father now appeals.
Discussion and Decision
[6] “The purpose of terminating parental rights is not to punish the parents but,
instead, to protect their children. Thus, although parental rights are of a
constitutional dimension, the law provides for the termination of these rights
when the parents are unable or unwilling to meet their parental
responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation
omitted). “[T]ermination is intended as a last resort, available only when all
other reasonable efforts have failed.” Id. A petition for the involuntary
termination of parental rights must allege in pertinent part:
(B) that one (1) of the following is true:
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(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
(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 that termination is appropriate by
a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144
(Ind. 2016). If the trial 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).
[7] “We have long had a highly deferential standard of review in cases involving
the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d
85, 92 (Ind. Ct. App. 2014).
We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Where the trial court enters findings
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
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assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.
Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings
do not support the trial court’s conclusions or the conclusions do not support
the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).
Clear and convincing evidence supports the trial court’s
conclusion that there is reasonable probability of unchanged
conditions.
[8] Father challenges the sufficiency of the evidence to support the termination of
his parental rights. 2 Specifically, he challenges the trial court’s conclusion that
there is a reasonable probability that the conditions that resulted in the
Children’s removal from and continued placement outside the home will not be
remedied. 3 In determining whether there is a reasonable probability that the
conditions that led to the Children’s removal and continued placement outside
the home will not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.
Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must
2
Father asserts that a few of the trial court’s findings of fact are “improper” for various reasons and “should
be disregarded” Appellant’s Br. at 9. We decline to specifically address Father’s claims regarding these
findings, as the trial court entered extensive unchallenged findings in support of its termination of Father’s
parental rights. See T.B. v. Ind. Dep't of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012) (“Unchallenged
findings stand as proven, and we simply determine whether the unchallenged findings are sufficient to
support the judgment.”), trans. denied.
3
Father also challenges the trial court’s conclusion that there is a reasonable probability that the continuation
of the parent-child relationship poses a threat to Children’s well-being. However, Indiana Code Section 31-
35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination of parental
rights, the trial court need only find that one of the three requirements of that subsection has been established
by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.
2013), trans. denied. Accordingly, we will address only one of the three requirements.
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ascertain what conditions led to their placement and retention in foster care.”
Id. Second, “we ‘determine whether there is a reasonable probability that those
conditions will not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132,
1134 (Ind. 2010). In the second step, the trial court must judge a parent’s fitness
at the time of the termination proceeding, taking into consideration evidence of
changed conditions, and balancing a parent’s recent improvements against
“habitual pattern[s] of conduct to determine whether there is a substantial
probability of future neglect or deprivation.” In re E.M., 4 N.E.3d 636, 643
(Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “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)
(citation omitted), trans. denied. The evidence presented by DCS “need not rule
out all possibilities of change; rather, DCS need establish only that there is a
reasonable probability that the parent’s behavior will not change.” In re Kay L.,
867 N.E.2d 236, 242 (Ind. Ct. App. 2007).
[9] Here, the Children’s initial removal from the home occurred while Father was
incarcerated, and Father remained incarcerated at the time of the termination
proceedings. Accordingly, Father urges that neither the evidence that
supported the initial removal, nor the evidence establishing that there is a
reasonable probability that the conditions that led to the Children’s removal
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and continued placement outside the home will not be remedied, should be
applied to him. He is mistaken.
[10] During the termination proceedings, Father testified that, although married to
Mother, he did not live with her prior to his incarceration and had never cared
for the Children alone. Father stated that he has three additional children by
other women, and he admitted that he has never paid child support for any of
his children. Father admitted to having a long-standing opioid addiction, and
the trial court took judicial notice that, in addition to his most recent
convictions, Father has numerous prior felony convictions (several involving
controlled substances). Regarding his most recent convictions, Father
explained that, in February 2017, he pled guilty to charges filed in November
2016 (level 6 felony unlawful possession of a syringe, level 6 felony operating a
vehicle as a habitual traffic violator, and class A misdemeanor false informing),
and received a two-year sentence that was stayed pending his successful
completion of the Madison County Drug Court Program. This occurred before
M.R. was born, and Father testified that he barely even saw M.R. because he
was “very busy” with Drug Court and work release. Tr. Vol. 2 at 76. Father
twice relapsed into illicit drug use and was subsequently ordered back to
criminal court. The criminal court ordered a second attempt at Drug Court
participation, but Father was again discharged as unsuccessful after he admitted
to using Suboxone without a prescription.
[11] Father visited the Children only one time before being incarcerated in October
2017, and he has remained incarcerated during most of their young lives.
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During the pendency of the CHINS proceedings, Father did not visit with the
Children, and he failed to maintain contact with DCS to arrange those visits. 4
Father further admitted that he never wrote letters or sent gifts to the Children.
As noted by DCS, Father’s actions demonstrate a “lack of commitment to
complete the actions necessary to preserve [the] parent-child relationship.”
Lang, 861 N.E.2d at 372 (citation omitted). Father then made an already bad
situation worse when he was found by the DOC to have committed a serious
violation of the rules of the Edinburgh Correctional Facility by attempting to
traffic drugs and phone cards into the facility, which resulted in him being
transferred from a “level one (1) prison” to a “level three (3) [prison].” 5
[12] The foregoing evidence supports a finding that, during the pendency of the
CHINS proceedings, Father hindered rather than enhanced his ability to fulfill
his parental obligations. Not only has Father failed to build or maintain any
relationship with the Children, but he has also continually and consistently
rebuked rehabilitative efforts and chosen instead to participate in criminal
4
Father blames his lack of contact with DCS, and his failure to visit with the Children, on the DCS family
case manager. The family case manager testified that she tried to maintain contact with Father; she denied
that Father had ever attempted to contact her; and she stated that, in the beginning, it was Mother who
would not allow the Children to visit with Father at the correctional facility. The case manager further
recounted the difficulties of locating and trying to communicate with Father due to his disciplinary transfer
between facilities. It was the trial court’s prerogative to assign weight and credibility to this evidence. C.A.,
15 N.E.3d at 92.
5
It is undisputed that, following a disciplinary hearing, Father was found guilty of this conduct violation by
the DOC disciplinary board. DCS Ex. D at 149. When asked about the violation during the termination
proceedings, on the advice of counsel, Father asserted his Fifth Amendment privilege against self-
incrimination. Tr. Vol. 2 at 62. In civil proceedings, a court is permitted to draw a negative inference from a
claim of the Fifth Amendment privilege against self-incrimination. Matter of Ma.H., 134 N.E.3d 41, 47 (Ind.
2019), cert. denied (2020).
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activity. Father’s habitual pattern of conduct and unwillingness to change his
negative behavior indicates a substantial probability of future neglect or
deprivation for these Children.
[13] In sum, clear and convincing evidence supports the trial court’s conclusion that
there is a reasonable probability that the conditions that resulted in the
Children’s removal from and continued placement outside the home will not be
remedied by Father. Father does not specifically challenge the trial court’s
conclusions that termination of his parental rights is in the Children’s best
interests or that DCS has a satisfactory plan for the Children’s care and
treatment, which is adoption. Therefore, we affirm the trial court’s termination
of Father’s parental rights.
[14] Affirmed.
Bailey, J., and Altice, J., concur.
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