In the Matter of the Involuntary Termination of the Parent-Child Relationship of: M.I. and A.J.I. and L.D.M. v. Indiana Department of Child Services and Dennis Koehlinger v. K.H. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 04 2019, 10:13 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 APPELLANTS ATTORNEYS FOR APPELLEE
A.J.I AND L.D.M. (FATHERS) THE INDIANA DEPARTMENT OF
Gregory L. Fumarolo CHILD SERVICES
Fort Wayne, Indiana Curtis T. Hill, Jr.
Attorney General of Indiana
ATTORNEY FOR APPELLANT Abigail R. Recker
GUARDIAN AD LITEM Deputy Attorney General
Indianapolis, Indiana
Roberta L. Renbarger
Fort Wayne, Indiana
ATTORNEY FOR APPELLEE
K.R.H. (MOTHER)
Thomas C. Allen
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary February 4, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 18A-JT-1948
Appeal from the Allen Superior
M.I., N.I.1, N.I.2, N.I.3, N.I.4,
Court
S.H.I. (Minor Children)
The Honorable Daniel G. Heath,
and Judge
A.J.I. (Father) and L.D.M. (Father) Trial Court Cause Nos.
02D08-1710-JT-146
Appellants-Respondents,
02D08-1710-JT-147
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v.
02D08-1710-JT-148
02D08-1710-JT-149
The Indiana Department of Child 02D08-1710-JT-150
Services, 02D08-1710-JT-151
Appellee-Petitioner.
and
Dennis Koehlinger,
Appellant-Guardian ad Litem,
v.
K.H. (Mother)
Appellee-Respondent.
Robb, Judge.
Case Summary and Issues
[1] The Indiana Department of Child Services (“DCS”) filed a petition to terminate
the parental rights of A.J.I. (“Legal Father”), L.D.M. (“Alleged Father”)
(collectively, “Fathers”), and K.R.H. (“Mother”) to Mother’s six children. The
juvenile court denied the petition as to Mother but terminated Fathers’ parental
rights. Fathers appeal the termination of their parental rights and the children’s
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guardian ad litem (“GAL”) appeals the juvenile court’s denial of the petition as
to Mother. This case presents two issues for our review: (1) whether the
juvenile court’s decision to terminate Fathers’ parental rights was clearly
erroneous; and (2) whether the juvenile court’s judgment denying DCS’ petition
to terminate Mother’s parental rights was contrary to law. We conclude the
juvenile court’s decision was not clearly erroneous as to Fathers but its denial of
DCS’ petition as to Mother was contrary to law. Accordingly, we affirm in
part, reverse in part, and remand.
Facts and Procedural History
[2] Six of Mother’s children, born from March 18, 2005 to January 1, 2014, are the
subject of this appeal (collectively the “Children”). Mother and Legal Father
were married in 2004 and divorced in 2015. He is the father of the five oldest
children. The youngest child, S.H.I., was born during the marriage, but
Alleged Father is believed to be her father, although his paternity has not been
established.
[3] In 2014, Legal Father was convicted of child molesting, a Class A felony.
None of the Children were the victim of the molestation. Legal Father was
sentenced to thirty-five years with twenty years executed and fifteen years
suspended with five years of probation. He is expected to be released in July
2023. Alleged Father was also incarcerated from 2013 through March 2018.
Mother was the primary caretaker of the Children while Fathers were
incarcerated. On or around November 20, 2015, Mother visited the DCS office
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and stated she was unable to care for the Children due to lack of housing and
her alcohol addiction. At this time, Mother admitted to DCS she was an
alcoholic and became intoxicated every night. Ten days later, the Children
were placed with their maternal great aunt, A.H.
[4] On December 2, 2015, DCS filed a petition alleging the Children were Children
in Need of Services (“CHINS”) and the same day, the juvenile court held an
initial/detention hearing and the Children were formally removed from Mother
and placed with A.H. Mother was permitted to reside with A.H. and the
Children. The juvenile court also appointed Denis Koehlinger as the Children’s
GAL.
[5] DCS filed an amended petition alleging Mother was unable to care for Children
due to her lack of housing and alcohol addiction, and that both Fathers were
incarcerated, on January 6, 2016. A hearing was held on January 11 at which
Mother and Alleged Father admitted to the allegations in the amended petition1
and the Children were adjudicated CHINS. The juvenile court entered a
dispositional decree ordering Mother to: participate in Narcotics Anonymous
and/or Alcoholics Anonymous; obtain a drug and alcohol assessment and
follow all recommendations; submit to random drug screens; obtain and
maintain suitable housing and employment; complete parenting classes;
complete family and individual counseling at Stop Child Abuse and Neglect;
1
Legal Father did not attend the hearing due to his incarceration.
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and attend visitation with Children. Alleged Father was also ordered to
participate in services available to him, including parenting services, therapy to
address domestic violence and substance use, and other preventative services.
See Exhibits at 31-32.
[6] In June, A.H. moved to another city and the Children were placed in foster
care. Legal Father subsequently admitted to the allegations of the CHINS
petition and the juvenile court took judicial notice that Mother and Alleged
Father previously admitted to those allegations at the January 11 hearing. The
juvenile court ordered Legal Father to maintain contact with DCS, provide the
Children with clothing, and participate in services available to him while
incarcerated, including parenting classes and therapy to address domestic
violence and substances abuse issues, and other available preventative services.
See Exhibits at 61-62.
[7] On April 27, 2017, the juvenile court conducted a review hearing and found
that Mother had not visited regularly with the Children, had been unable to
maintain stability, and still needed to participate in counseling and home-based
services. The juvenile court also found that Mother had obtained a
psychological evaluation, results thereof were pending, and the service
providers had identified “possible mental health needs.” Exhibits at 68. At that
time, the permanency plan for Children was reunification with Mother, but the
juvenile court ordered the Children to be continued in foster care.
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[8] DCS filed its Verified Petition to Terminate the Parent-Child Relationship
between Mother and Children, and between Fathers and Children on October
4. At a permanency hearing on October 23, the juvenile court found that
Mother, Legal Father, and Alleged Father had all “failed to enroll or
satisfactorily participate in the services and programs required in the
dispositional decree.” Exhibits at 84. On March 21, 2018, DCS filed an
amended petition naming L.D.M. as the Alleged Father of S.H.I. and A.J.I. as
the Legal Father of S.H.I.
[9] The juvenile court held fact finding hearings on the petition over several days in
May and took the matter under advisement. On July 17, the juvenile court
denied DCS’ petition to terminate Mother’s parental rights but terminated
Legal Father’s and Alleged Father’s parental rights. Fathers appeal the
termination of their parental rights and the GAL appeals the juvenile court’s
denial of the petition to terminate Mother’s parental rights. Additional facts
specific to each party will be provided as necessary.
Discussion and Decision
I. Standard of Review
[10] A parent’s right to establish a home and raise his or her children is protected by
the Fourteenth Amendment to the United States Constitution. Bester v. Lake
Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A parent’s
interest in the care, custody, and control of his or her children is ‘perhaps the
oldest of the fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530
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U.S. 57, 65 (2000)). Although the parent-child relationship is “one of the most
valued relationships in our culture[,]” parental rights may be terminated when
the parents are unable or unwilling to meet their parental responsibilities. In re
G.Y., 904 N.E.2d 1257, 1259-60 (Ind. 2009). The purpose of terminating
parental rights is to protect children, not to punish parents. In re D.D., 804
N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied.
[11] 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
consider only the evidence most favorable to the judgment and the reasonable
inferences that can be drawn therefrom. Id.
[12] Pursuant to Indiana Code section 31-35-2-8(c), the juvenile court entered
findings of fact and conclusions thereon. Accordingly, we apply a two-tiered
standard of review. Bester, 839 N.E.2d at 147. We first determine whether the
evidence supports the findings, then determine whether the findings support the
judgment. Id. We will set aside the juvenile court’s judgment only if clearly
erroneous, namely when the findings “do not support the [juvenile] court’s
conclusions or the conclusions do not support the judgment.” Id.
II. Termination of Parental Rights
[13] To terminate a parent’s rights, the State must prove by clear and convincing
evidence:
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(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
(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2); see also Ind. Code § 31-37-14-2 (“A finding in a
proceeding to terminate parental rights must be based upon clear and
convincing evidence.”). Because Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive, DCS is only required to prove one of three elements
of subsection (B). In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). We
analyze each party’s arguments on appeal separately.
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III. Fathers’ Appeal
A. Legal Father
[14] Legal Father does not challenge the juvenile court’s findings but argues that the
findings do not support its decision to terminate his parental rights.
Specifically, he challenges the juvenile court’s conclusion that there is a
reasonable probability that the conditions that led to removal of the Children
would not be remedied and that the continuation of the parental-child
relationship poses a threat to the well-being of the Children.2
[15] As to Legal Father, the juvenile court found:
112. On July 14, 2014, [Legal Father] was convicted of child
molesting, an A felony. The sentence was for thirty-five (35)
years, with twenty (20) years to be executed with the balance of
fifteen years (15) were suspended. The anticipated release from
prison date . . . is July 19, 2023. When he is released from prison
in 2023, he will have five (5) years of probation. Following his
release, he will be on the child molestation registry for ten (10)
years and he must participate in a program for sex offenders. . . .
Furthermore, his divorce agreement requires that visitations with
his children must be supervised.
113. [Legal Father] has not been physically in the presence of his
children since the day he began his incarceration . . . July 17,
2014. He has seen some pictures of them, provided to him by
family members. He has sent them birthday presents and cards.
He made them hand-crafted items for his [C]hildren. He has had
2
Fathers appeal the termination of their parental rights collectively.
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phone contact once with his [C]hildren since the beginning of his
incarceration. He has had no contact whatsoever with them for
the past eighteen (18) months for the reason that he does not
know where they are residing.
114. That last time that [Legal Father] was physically in the
presence of his [C]hildren was October 7, 2013 . . . .
115. Due to his incarceration, [Legal Father] cannot provide the
necessary care and supervision of his [C]hildren.
116. Under the Court’s dispositional plan for [Legal Father], [he]
has been unable to provide “clean, appropriate clothing at all
times” for his [C]hildren.
117. [Legal Father’s] plan for employment, upon his release
from prison, includes working at Ellison Bakery with his mother,
obtaining his CDL so that he can become a long-haul truck
driver, and starting his own music record label.
118. His plan for housing, upon his release from prison, he will
reside with either his mother or his step-father, both of whom
reside in Fort Wayne. Regarding the deed to his mother’s house,
[his] name is on the deed as well as his mother and his brother.
He does not own a home solely in his name.
119. Regarding the requirement that [he] participate in parenting
classes and therapy to address domestic violence and substance
abuse issues, also a requirement of the Dispositional Order in the
CHINS case involving [Legal Father] and his children, [he] has
completed a program titled “Resolution for Men” which is a
Christian-based parenting program offered at the New Castle
Correctional Facility. He is on the waiting list for a program
called “Navigators” which is designed to help you become a
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better person. He has also taken some “therapeutic” classes to
deal with domestic violence. He cannot take any substance
abuse classes until he has some twenty-five (25) months left of his
period of incarceration.
120. In a program promoted by the U.S. Department of Labor,
[Legal Father] is working to become a Master Student/Master
Employee with an eye toward “culinary arts.” He has
maintained employment while incarcerated.
121. While [Legal Father’s] earliest possible release date, as of
the date of the trial, is July 19, 2023, he can receive “time cuts”
by completing certain programs. He has earned one, 6 month
“time cut” so far and is set to complete another program for
another “time cut” when he returns to the New Castle
Correctional Facility.
122. [Legal Father] intends to carry on a relationship with his
children upon his release from prison.
123. [Legal Father] has advised the DCS that if the children are
not placed with [Mother], that his children be placed with either
his family or [Mother’s] family.
***
[T]he court finds that, due to his incarceration, [Legal Father] is
unable to provide the necessary care, supervision and material
financial support for his [C]hildren. He is expected to remain
incarcerated for the next four (4) to four and one-half (4 and ½)
years. He has had little contact with [his] [C]hildren since the
commencement of his incarceration. His inability to provide for
his [C]hildren’s care, supervision and material financial support
will not be remedied until his release date and possibly beyond.
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Most of the childhood years of [his] [C]hildren at issue will be
gone by the time of his release. Furthermore, his incarceration
stems from his conviction of an A felony for child molestation.
Therefore, as he is a convicted child molester, there is a
reasonable probability that the continuation of the parent-child
relationship poses a threat to the well-being of the
aforementioned children, under Indiana Code section 31-35-2-
4(b)(2)(ii). The court concludes that [DCS] has met its burden by
clear and convincing evidence that terminating the parental rights
of [Legal Father] is in the best interests of the aforementioned
children.
Appealed Order at 20-23. (citations omitted).
[16] First, we note that Legal Father does not dispute any of the juvenile court’s
findings of fact pertaining to him and we accept those unchallenged findings as
true. McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997). We
therefore address only whether the juvenile court’s findings support its
judgment. Bester, 839 N.E.2d at 147.
[17] As to remedied conditions, Legal Father alleges that DCS became involved
with the Children while he was incarcerated when Mother sought help due to
her lack of housing and alcohol addiction, impacting her ability to care for the
Children. Thus, he argues he was “not responsible for the conditions which led
to the removal” of the Children. Brief of Appellant(s)/Father(s) at 17-18.
[18] In determining whether a reasonable probability exists that the reasons for
removal or placement outside the home will not be remedied, we engage in a
two-step analysis. K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 647 (Ind.
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2015). We first identify the conditions that led to removal, then we determine
whether there is a reasonable probability that those conditions will not be
remedied. Id. As to the second step,
the [juvenile] court must judge a parent’s fitness to care for her
child at the time of the termination hearing, taking into
consideration evidence of changed conditions. The [juvenile]
court must also evaluate the parent’s habitual patterns of conduct
to determine the probability of future neglect or deprivation of
the child. Pursuant to this rule, courts have properly considered
evidence of a parent’s criminal history, drug and alcohol abuse,
history of neglect, failure to provide support, and lack of
adequate housing and employment. The [juvenile] court may
also properly consider the services offered to the parent by [DCS]
and the parent’s response to those services as evidence of whether
conditions will be remedied. Finally, [DCS] is not required to
provide evidence ruling out all possibilities of change; rather, it
need establish only that there is a reasonable probability the
parent’s behavior will not change.
In re I.A., 903 N.E.2d at 154 (citations and emphasis omitted).
[19] We begin with the conditions that led to removal or reasons for placement
outside of the home. The record reveals that the Children were initially
removed from Mother on November 30, 2015, after she appeared at the DCS
office and admitted she was unable to care for the Children due to lack of
housing and her alcohol addiction. At this time, both Fathers were incarcerated
and unable to care for the Children. Here, the juvenile court found that Legal
Father is unable to provide the necessary care, supervision, and financial
support for his Children due to his incarceration and his inability to do so “will
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not be remedied until his release date and possibly beyond.” Appealed Order at
23, ¶ 4.
[20] As to whether those conditions will be remedied, we first acknowledge that our
supreme court has held that incarceration itself is an insufficient basis for
terminating parental rights. In re G.Y., 904 N.E.2d at 1264-66. Legal Father
asserts that he has made “significant steps towards his rehabilitation” during his
incarceration and thus the juvenile court erred in concluding it is unlikely he
will remedy the conditions. Br. of Appellant(s)/Father(s) at 18. In contrast,
DCS contends the conditions will not be remedied given Legal Father’s
“limited contact” with the Children, his child molestation conviction
prohibiting him from having unsupervised contact with the Children, and the
fact that he will be incarcerated until 2023. Brief of Appellee at 21.
[21] DCS distinguishes Legal Father’s progress from the progress demonstrated by
the incarcerated father in K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641 (Ind.
2015), whose parental rights were also terminated. In K.E., our supreme court
reversed the termination of father’s parental rights given father’s “substantial
efforts towards bettering his life” by participating in twelve programs during his
incarceration, most of which were voluntary and did not result in a sentence
reduction. Id. at 648. In addition, the father participated in visitation with his
children every other week and made nightly phone calls to his children. Id. at
649. Overall, the father in K.E. made “great strides” during his incarceration.
Id.
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[22] Based on Legal Father’s minimal contact with the Children, we agree with
DCS that Legal Father’s efforts can be distinguished from those in K.E.. First,
Legal Father’s absence from the Children’s lives predates his incarceration.
The juvenile court found the last time Legal Father was physically present with
his Children was in October 2013, approximately eleven months before he was
incarcerated in July 2014. Second, although he has sent birthday presents,
cards, and hand-crafted items, he has had phone contact once since his
incarceration and has not had any contact with the Children in the last eighteen
months. Legal Father argues the juvenile court “did not give appropriate
weight to the fact that [he] was likely to receive additional ‘time cuts’ for
completion of [Department of Correction] programs.” Br. of
Appellant(s)/Father(s) at 18. Legal Father’s assertion is a request to reweigh
the evidence, which we cannot do. Lang, 861 N.E.2d at 371.
[23] We commend Legal Father on his efforts to better himself. However, given his
minimal contact with the Children, we cannot conclude the juvenile court erred
in determining the conditions which led to the Children’s removal are likely to
be remedied.3
3
Given that Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS only had to prove one
of three elements of subsection (B). In re I.A., 903 N.E.2d at 153. Thus, because we conclude that the
juvenile court’s determination that a reasonable probability exists that the conditions which led to Children’s
removal will not be remedied is not clearly erroneous, we need not address Legal Father’s argument
regarding (b)(2)(B)(ii).
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B. Alleged Father
[24] Alleged Father appeals the termination of his parental rights as to S.H.I. The
juvenile court found:
109. [Alleged Father] has only seen [S.H.I.] twice: once while in
jail and once while [S.H.I.] was in the case [sic] of [Mother].
During the time [S.H.I.] was in [Mother’s] care, [Alleged Father]
has not provided any financial assistance for [S.H.I.].
110. [Alleged Father] has made no contact with DCS since his
release from incarceration and has provided no evidence of
compliance with the requirements of his Court-ordered Parent
Participation Plan.
***
[Alleged Father] did not appear for trial though he was released
from incarceration prior to trial. Furthermore, he had previously
admitted that he was unable or unwilling to provide the
necessary care and supervision for [S.H.I.]. Furthermore, he
admitted that he is unable or unwilling to provide material
financial support for [S.H.I.]. [Alleged Father], therefore, has
abandoned [S.H.I.]. [DCS] has shown, by clear and convincing
evidence, that his abandonment is unlikely to be remedied, that
whether [Mother] ultimately regains custody or control of her
[C]hildren or the [C]hildren are ultimately adopted, [DCS] has or
will have a satisfactory plan for the care and treatment of the
[C]hildren, and it is in the best interests of [S.H.I.] that the
parental rights of [Alleged Father] as to [S.H.I.] be terminated.
Appealed Order at 20, 23.
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[25] Alleged Father challenges the finding that he has abandoned S.H.I., a condition
the juvenile court concluded was unlikely to be remedied. His only argument is
that the evidence at trial demonstrates that he had been incarcerated throughout
the pendency of the CHINS matter and was released just before the termination
proceedings, thus the evidence does not support the termination of his parental
rights.
[26] DCS, however, argues the juvenile court did not find legal abandonment nor
did DCS have to prove the requirements thereof. And moreover, DCS argues
that the evidence supports the conclusion that Alleged Father is unlikely to
remedy the conditions for placement of S.H.I. outside of the home “in part
because he essentially abandoned” S.H.I. Br. of Appellee at 23.
[27] Again, we engage in a two-step analysis to determine whether the conditions
that led to S.H.I.’s removal and continued placement outside of the home will
likely be remedied. K.E., 39 N.E.3d at 647. We first identify the conditions
that led to removal, then whether a reasonable probability exists that those
conditions will not be remedied. Id. Children were removed due to Mother’s
lack of housing and alcohol addiction resulting in her inability to care for the
Children.
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[28] The evidence shows that Alleged Father was incarcerated from 2013 to
approximately March 2018.4 Deondra Bender, family case manager, testified
that she communicated with Alleged Father while he was incarcerated, but “not
often.” Transcript, Volume 2 at 36. The communication was typically via
telephone “only on court hearing dates when possible.” Id.
[29] The record reveals that DCS sent Alleged Father a letter upon his release,
“asking him to please contact [DCS] to discuss the case that he’s involved in”
and provided the necessary contact information. Tr., Vol. 1 at 228. The DCS
case manager testified that she contacted Allen County Adult Probation where
he was released and believed she had a correct address for Alleged Father.
Alleged Father has not had any contact with DCS since his release, has not
provided S.H.I. with any clothing as ordered, or provided any evidence to
demonstrate his compliance with the Parent Participation Plan. Furthermore,
Alleged Father has only seen S.H.I. twice since her birth and the juvenile court
found that he “failed to appear throughout the proceedings on the petition.”
Appealed Order at 2.
[30] We note that a “parent’s failure to appear for . . . court hearings reflects
ambivalence[.]” In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000). The
4
The exact date of Alleged Father’s release is unclear. The GAL testified at the May 31, 2018 hearing that
Alleged Father had been released from incarceration “relatively recent[ly].” Transcript, Volume 2 at 71. He
was unsure as to when, but believed it was within the last couple of months. Id. In addition, the DCS family
case manager testified that she sent Alleged Father a letter in March 2018 “shortly after he was released[.]”
Tr., Vol. 1 at 228.
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evidence in the record supports the juvenile court’s finding that Alleged Father
has abandoned S.H.I. His lack of effort to reach out to DCS or attend a single
termination hearing supports the conclusion that this condition is unlikely to be
remedied.
C. Best Interests
[31] Fathers both argue the juvenile court’s determination that termination of their
parental rights is in the Children’s best interests was clearly erroneous. To
determine the best interests of the Children, the juvenile court looks to the
totality of the evidence and must subordinate the interests of the parents to
those of the children. In re D.D., 804 N.E.2d at 267. “A child’s need for
permanency is an important consideration in determining the best interests of a
child, and the testimony of the child’s guardian ad litem supports a finding that
termination is in the child’s best interests.” In re D.L., 814 N.E.2d 1022, 1030
(Ind. Ct. App. 2004), trans. denied.
[32] Here, the Children’s GAL testified that he believed it was in the best interests of
the Children for Fathers’ parental rights to be terminated. Tr., Vol. 2 at 64.
Thus, the juvenile court’s determination that termination of Father’s parental
rights is in the best interests of the Children is not clearly erroneous.
D. Satisfactory Plan
[33] Fathers also challenge the juvenile court’s finding that DCS “has or will have a
satisfactory plan for the care and treatment of the [C]hildren[.]” Appealed
Order at 23. A DCS plan is satisfactory when the plan is to attempt to find
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suitable parents to adopt the children. In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct.
App. 2014), trans. denied. We will not find a plan unsatisfactory simply because
DCS has not yet identified a specific family to adopt the children. Id. There
need not be a guarantee that a suitable adoption will take place, only that DCS
will attempt to find a suitable adoptive parent. Id. Similarly, a plan does not
need to be detailed, so long as it offers a general sense of the direction in which
the children will be going after the parent-child relationship is terminated. In re
D.D., 804 N.E.2d at 268.
[34] At the termination hearing, Amanda Ray, DCS case manager, testified that
DCS has a plan for the care and treatment of the Children, namely adoption.
See Tr., Vol. 1 at 229-30. She testified that DCS “would continue to provide for
the children in the foster care. . . until they could be safely adopted or
successfully adopted.” Id. at 230. She also testified that DCS would like to
place all Children in a single adoptive home although it would be difficult. See
id. at 233. Thus, the juvenile court’s determination here was not clearly
erroneous.
IV. GAL’s Appeal
[35] The GAL appeals the juvenile court’s denial of the DCS petition to terminate
Mother’s parental rights as to Children. Here, the juvenile court found: (1) that
Mother’s alcohol addiction and inability to control the Children has been or is
likely to be remedied; (2) Mother’s lack of housing has not been remedied; and
(3) DCS failed to prove that termination was in the Children’s best interests.
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The GAL appeals. The juvenile court entered over eighty findings of fact
pertaining to Mother and concluded, in pertinent part:
5. [T]he court notes that [Mother] has failed to complete her
treatment through AA, and DBT and CBT treatment through
Park Center. Furthermore, she has had difficulty maintaining
stable employment though she has had consistent employment
through temporary employment agencies. While it would
obviously better [sic] for [Mother] to have successfully completed
her treatment plans and to have had a better employment history,
the court cannot conclude that these factors meet the burden
[DCS] has by clear and convincing evidence that [Mother’s]
parental rights should be terminated. The court makes this
conclusion despite the testimony of Dr. Lombard [Licensed
Clinical Psychologist] that [Mother] should not have the care and
custody of her [C]hildren until such time as she is “compliant”
with treatment. The treatment required under the Parent
Participation Plan when considered in the context of her need to
also find stable employment and housing, is difficult to
accomplish, especially for someone without personal
transportation.
6. Furthermore, it would appear that [Mother] has gained
control, for the most part, of her alcohol and drug addiction. The
court makes this finding despite the evidence that she did test
positive for THC on one occasion and admits to two occasions of
alcohol abuse during the pendency of this matter. Therefore, this
problem has been, for the most part remedied.
7. Another concern expressed by [Mother] to DCS staff was her
inability to control her [C]hildren. While this problem has not
yet been totally remedied, she has completed parenting classes
and has shown sufficient progress in the improvement of her
parenting skills, as demonstrated during her visitations, that the
court concludes that remedying this concern is a good possibility.
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8. The final issue for the court’s consideration that must be
remedied is the lack of suitable housing for [Mother] and her
[C]hildren. [Mother] originally appeared at the DCS office
complaining of her inability to control her alcohol addiction,
probably [sic] control and supervise her [C]hildren, and to
provide housing for them. She was able to gain some period of
time for housing with [A.H.] until approximately June 1, 2016,
when [A.H.] moved out-of-state. Since that time [Mother] has
been unable to secure suitable housing . . . . She has been at
“Transitions,” “Vincent Villages,” and various hotels and with
friends. Furthermore, she has admitted, and makes clear by her
own testimony, that it is very difficult for her to secure housing
because of her credit history and the size of her family. She
would likely be able to secure food stamps again and obtain
Medicaid coverage for the [C]hildren if her [C]hildren are
restored to her, but this would not remedy her ability to secure
suitable housing. She has been making attempts during the entire
time since her [C]hildren were removed from her care and
custody, June 1, 2016. It has, therefore, been more than two (2)
years that [Mother] has been making the attempt without
success. The problem of housing is the essential problem that
[Mother] must remedy to have her [C]hildren restored to her.
9. On the other hand [DCS] presented no evidence that waiting
in the wings are real prospective adoptive parents. Children, as
in this case, ages 13, 12, 11, 9 and so on, with some behavioral
issues (as was shown in this case) are likely not easily adopted.
Put differently, though [Mother] may continue to struggle to
secure ample housing for her family, so might [DCS] struggle to
find adoptive parents. Furthermore, it is also apparent from the
evidence that there is a strong, loving bond between [Mother]
and her [C]hildren[.]
10. Therefore, though it may continue to be difficult for
[Mother] to secure suitable housing[,] . . . the court cannot yet
conclude that it would be in the best interests of the [C]hildren
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that [Mother’s] parental rights be terminated. [DCS] has failed to
show by clear and convincing evidence that it would be in the
best interests of the [C]hildren at issue in this case that [Mother’s]
parental rights should be terminated.
Appealed Order at 24-25.
[36] Because the GAL is faced with a ruling against the termination of Mother’s
parental rights, it must “overcome the additional burden of appealing from a
negative judgment.” In re D.Q., 745 N.E.2d 904, 909 (Ind. Ct. App. 2001).
Where a party has the burden of proof at trial and an adverse judgment is
entered, if the party prosecutes an appeal, he or she does so from a negative
judgment. J.W. v. Hendricks Cty. Office of Family & Children, 697 N.E.2d 480, 481
(Ind. Ct. App. 1998). To prevail on an appeal from a negative judgment, the
appellant must demonstrate that the judgment is contrary to law. In re D.Q.,
745 N.E.2d at 909. “A judgment is contrary to law when the evidence is
without conflict and all reasonable inferences to be drawn from that evidence
lead to but one conclusion, but the juvenile court reached a different
conclusion.”5 Id.
[37] The GAL’s standing is aligned with DCS in this instance. See Ind. Code § 31-
35-2-4(a) (a petition to terminate the parent-child relationship may be filed by a
child’s GAL, DCS, or child’s court appointed special advocate); see also Bester,
5
We note that our standard of review in termination matters is already whether the judgment is contrary to
law. See supra ¶ 12. However, because the GAL appeals from a negative judgment, the “contrary to law”
standard is slightly different.
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839 N.E.2d at 148 (the State bears the burden of proving the allegations of the
petition to terminate parental rights by clear and convincing evidence). The
GAL represented the Children at the termination hearings, testified that
termination is in their best interests, and subsequently initiated this appeal after
the juvenile court denied DCS’ petition to terminate Mother’s parental rights.
Thus, the GAL appeals from a negative judgment and must demonstrate that
the juvenile court’s judgment is contrary to law.
A. Remedy of Conditions
[38] The GAL takes issue with the juvenile court’s determination that the conditions
which led to the Children’s removal have been or will be remedied. We note,
however, that the juvenile court did not explicitly find that DCS failed to meet
its burden by clear and convincing evidence under Indiana Code section 31-35-
2-4(b)(2)(B). Rather, the juvenile court found that the Children were initially
removed from Mother after she appeared at DCS notifying them she was
unable to care for the Children due to her lack of housing, inability to control
the Children, and her alcohol addiction. As to remedied conditions, the
juvenile court entered specific findings pertaining to each condition. It
concluded that Mother’s alcohol and drug addiction “for the most part” has
been remedied and her inability to control her Children “has not yet been
totally remedied” but remedying this is a “good possibility” given her progress.
Appealed Order at 24. However, it also found that Mother has attempted to
find housing for more than two years without success, thus the “problem of
housing is the essential problem that [Mother] must remedy to have her
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[C]hildren restored to her.” Id. Even if Mother has remedied her alcohol
addiction and inability to control the Children, the juvenile court still found she
did not remedy her lack of housing.
[39] To the extent the GAL challenges a general determination under Indiana Code
section 31-35-2-4(b)(2)(B)(i) that there is a reasonable probability that the
conditions that led to Children’s removal will be remedied, there is no such
finding in the Appealed Order. See Appealed Order 24-25, ¶ 5-10. Because the
juvenile court found that Mother did not remedy all conditions that led to the
Children’s removal, we conclude that DCS met its burden under Indiana Code
section 31-35-2-4(b)(2)(B).
B. Best Interests
[40] The GAL challenges the juvenile court’s finding that the termination of
Mother’s parental rights is not in the Children’s best interests, highlighting
Mother’s pattern of instability. Here, the juvenile court recognized that
Mother’s lack of housing has not been remedied, but concluded:
9. On the other hand [DCS] presented no evidence that waiting
in the wings are real prospective adoptive parents. Children . . .
ages 13, 12, 11, 9 and so on, with some behavioral issues . . . are
likely not easily adopted. Put differently, though [Mother] may
continue to struggle to secure ample housing for her family, so
might [DCS] struggle to find adoptive parents. Furthermore, it is
also apparent from the evidence that there is a strong, loving
bond between [Mother] and her [C]hildren.
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10. Therefore, though it may continue to be difficult for
[Mother] to secure suitable housing for herself and her family, the
court cannot yet conclude that it would be in the best interests of
the [C]hildren that [Mother’s] parental rights be terminated.
[DCS] has failed to show by clear and convincing evidence that it
would be in the best interests of the [C]hildren at issue in this
case that [Mother’s] parental rights should be terminated.
Appealed Order at 24-25.
[41] “Permanency is a central consideration in determining the best interests of a
child.” G.Y., 904 N.E.2d at 1265. To determine the best interests of the
children, the juvenile court must look beyond the factors identified by DCS and
to the totality of the evidence. In re D.L., 814 N.E.2d at 2030. In doing so, the
juvenile court must subordinate the interests of the parent to those of the
children involved and need not wait until a child is irreversibly harmed before
terminating parental rights. McBride v. Monroe Cty. Office of Family & Children,
798 N.E.2d 185, 203 (Ind. Ct. App. 2003).
[42] Here, the juvenile court acknowledged that Mother has not been able to obtain
suitable housing in over two years and found that it is an “essential problem
that [Mother] must remedy to have her [C]hildren restored to her.” Appealed
Order at 24. At the hearing, Mother’s family coach testified that Mother made
no progress pertaining to her goal of attaining suitable housing. See Tr., Vol. 1
at 20. She explained that she went with Mother to look at various housing
options and Mother filled out applications, but ultimately made “no progress.”
Id. The record reveals that Mother was living “[i]n and out of hotels” in
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February 2018 and was living with her sister at the time of the termination
hearings. Id. Moreover, Mother testified that she has not been able to obtain
housing, but her boyfriend was currently looking for housing and it is difficult
to find a place big enough for her family. She also testified that her boyfriend
has a Section 8 voucher and anticipated moving “within the next month.” Id.
at 167. However, Amanda Ray, DCS case manager, explained that any adults
in the home with the Children would have to pass background checks through
DCS and the hearing was the first time she heard Mother indicate she intended
to live with her boyfriend. Mother stated her boyfriend had not yet met the
Children or had a background check and she was aware he had a criminal
history. The evidence that Mother is unable to obtain suitable housing for
herself and the Children is “without conflict and all reasonable inferences to be
drawn from that evidence” lead us to conclude that termination of Mother’s
parental rights is in the best interests of the Children as the Children would
effectively become homeless if returned to Mother.6 In re D.Q., 745 N.E.2d at
909.
6
The GAL appears to take issue with the juvenile court’s finding that DCS “presented no evidence that
waiting in the wings are real prospective adoptive parents. Children . . . with some behavioral issues . . . are
likely not easily adopted.” Appealed Order at 24. The GAL argues the “fact that the plan for the Children
may be time consuming or difficult . . . should not deter the termination of Mother’s parental rights to allow
DCS to attempt to fashion a permanent solution for these Children.” Brief of Appellant/Guardian Ad Litem
at 21. Because the juvenile court found that DCS has or will have a satisfactory plan for the care and
treatment of the Children, we need not address this issue.
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Conclusion
[43] For the foregoing reasons, we affirm the juvenile court’s judgment terminating
Fathers’ parental rights and reverse the judgment of the juvenile court denying
DCS’ petition as to Mother. We remand to the juvenile court to enter a
judgment consistent with this opinion terminating Mother’s parental rights as to
Children.
[44] Affirmed in part, reversed in part, and remanded.
Riley, J., and Kirsch, J., concur.
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