In the Termination of the Parent-Child Relationship of: A.J. (Minor Child) and H.J. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 26 2018, 8:22 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Don R. Hostetler Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- April 26, 2018
Child Relationship of: Court of Appeals Case No.
A.J. (Minor Child) 49A05-1711-JT-2637
and Appeal from the Marion Superior
Court
H.J. (Father),
The Honorable Marilyn Moores,
Appellant-Respondent, Judge
v. The Honorable Larry Bradley,
Magistrate
Trial Court Cause No.
The Indiana Department of
49D09-1512-JT-738
Child Services,
Appellee-Petitioner.
Robb, Judge.
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Case Summary and Issue
[1] H.J. (“Father”) appeals the juvenile court’s order terminating his parental rights
to his child, A.J. (“Child”). Father raises multiple issues for our review, which
we consolidate and restate as whether the juvenile court’s termination order is
clearly erroneous. Concluding the juvenile court’s order is not clearly
erroneous, we affirm.
Facts and Procedural History
[2] Child was born on September 11, 2012, to Father and T.R. (“Mother”). On
November 13, 2014, the Indiana Department of Child Services (“DCS”) filed a
verified petition alleging Child and her stepsister, A.R., were children in need of
services (“CHINS”).1 DCS removed Child and A.R. from Mother’s care
because A.R. tested positive for marijuana at birth. At the time of the filing of
the CHINS petition, Father was incarcerated in the Indiana Department of
Correction (“DOC”).2 On February 24, 2015, Father stipulated that Child was
a CHINS and the juvenile court entered a dispositional order placing Child in
relative care with her maternal grandmother. The juvenile court’s dispositional
order also notified Father that he was to contact DCS within seventy-two hours
1
Father is not A.R.’s parent. Further, Mother’s parental rights to Child and A.R. were terminated in a
separate proceeding and neither Mother nor A.R. are a party to this appeal.
2
Father pleaded guilty to burglary on January 8, 2013, and received a twelve-year sentence with five years
suspended. Father’s criminal history also includes two convictions, one in 2007 and one in 2008, for carrying
a handgun without a license, one as a Class A misdemeanor and the other as a Class C felony, respectively.
Father served time in the DOC for each conviction.
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following his release from incarceration. On December 10, 2015, DCS filed its
verified petition seeking the involuntary termination of both Father’s and
Mother’s parental rights.
[3] During his time in the DOC, Father completed the DOC’s “Inside Out Dad”
program and a substance abuse program, received his general education
diploma, and took a class in culinary arts. Transcript, Volume II at 66. Father
was released from incarceration on November 10, 2016. Father did not contact
DCS following his release from prison; however, he did spend time with Child
and frequently visited her from the date of his release from incarceration until
April of 2017. DCS, however, was unable to find or contact Father until March
of 2017. In April of 2017, DCS halted Father’s informal visits with Child and
permitted him to visit Child only pursuant to a supervised visit. Father had
only one supervised visitation with Child which occurred on April 30, 2017.
[4] On March 18, 2017, Father was arrested and charged with possession of
cocaine, a Level 6 felony; and resisting law enforcement, a Class A
misdemeanor. On April 25, 2017, Father was arrested again and charged with
intimidation, a Level 6 felony; interference with the reporting of a crime, a
Class A misdemeanor; and criminal mischief, a Class B misdemeanor.
[5] Father pleaded guilty to intimidation in August of 2017 in exchange for the
State’s dismissal of the remaining two charges stemming from the April 2017
arrest. The trial court sentenced Father to 730 days—552 days suspended to
probation and eighty-nine days of credit time. In November of 2017, Father
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pleaded guilty to possession of cocaine and resisting law enforcement stemming
from the March 2017 arrest. The trial court sentenced Father to 545 days
executed in the DOC for possession of cocaine, concurrent with 365 days for
resisting law enforcement.
[6] On October 16, 2017, the juvenile court held a hearing on DCS’ petition to
involuntarily terminate Father’s parental rights.3 At the hearing, both Naomi
Boone, the DCS family case manager, and Mark Bass, the Guardian ad Litem,
testified it was in Child’s best interest for Father’s parental rights to be
terminated. The juvenile court issued its findings of fact and conclusions
thereon on October 23, 2017. The juvenile court found, in relevant part,
20. There is a reasonable probability that the conditions that
resulted in [Child’s] removal and continued placement
outside the home will not be remedied by [Father].
[Father] was incarcerated for most of the CHINS
proceeding, and remains incarcerated after committing
new crimes during the CHINS case, violating probation.
When not incarcerated, he minimally participated in
services.
21. There is a reasonable probability that the continuation of
the parent-child relationship poses a threat to [Child’s]
well-being in that it would pose as a barrier to obtaining
permanency for her through an adoption into the only
home she has really known, and by caregivers with whom
she is bonded and shares a parent-child relationship.
***
3
Although incarcerated in the DOC at the time, Father appeared in person at the fact-finding hearing.
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24. Termination of the parent-child relationship is in the best
interests of [Child]. Termination would allow her to be
adopted into a loving and permanent home with her
sibling.
Appealed Order at 2. Father now appeals.
Discussion and Decision
I. Standard of Review
[7] In reviewing a juvenile court’s order terminating parental rights, we neither
weigh the evidence nor judge witness credibility and we consider only the
evidence and reasonable inferences most favorable to the judgment. In re C.G.,
954 N.E.2d 910, 923 (Ind. 2011). We apply a two-tiered standard of review to
the juvenile court’s findings of fact and conclusions thereon: we first determine
whether the evidence supports the findings and then determine whether the
findings support the judgment. Id. “We will set aside the court’s judgment
terminating a parent-child relationship only if it is clearly erroneous. Clear
error is that which leaves us with a definite and firm conviction that a mistake
has been made.” S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123 (Ind.
Ct. App. 2013) (citation omitted).
II. Termination Order
[8] Father contends the juvenile court’s termination order is clearly erroneous in
three respects: (1) DCS failed to meet its burden of proof that the conditions
resulting in Child’s removal and continued placement outside the home would
not be remedied; (2) DCS failed to meet its burden of proof that the
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continuation of the parent-child relationship poses a threat to Child’s well-
being; and (3) DCS failed to meet its burden that termination of Father’s
parental rights is in Child’s best interest.
[9] “[T]he involuntary termination of parental rights is an extreme measure that is
designed to be used as a last resort when all other reasonable efforts have failed
. . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)
(citation omitted). Indiana Code section 31-35-2-4(b)(2) sets out what must be
proven in order to terminate parental rights, which we provide 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
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[; and]
***
(C) that termination is in the best interests of the child . . . .
[10] The State must prove each element by clear and convincing evidence. Ind.
Code § 31-34-12-2. 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).
[11] We first address Father’s argument DCS failed to present clear and convincing
evidence the conditions that resulted in Child’s removal or placement outside
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the home will not be remedied. In determining whether there is a reasonable
probability that “the conditions which resulted in the removal of the [child] will
not be remedied, the [juvenile] court should judge a parent’s fitness to care for
his [child] at the time of the termination hearing, taking into consideration
evidence of changed conditions.” In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App.
2000). The juvenile court must evaluate the parent’s habitual patterns of
conduct to determine whether there is a substantial probability of future neglect
or deprivation of the children. Id.[12] Father alleges the juvenile court and DCS placed too much emphasis on his
incarceration and overlooked the activities he undertook while in the DOC to
prepare himself to care for Child. He argues the “DCS’s [sic] singular showing
that frequent incarcerations prevent [Father] from remedying conditions . . . is
not valid under Indiana Supreme Court precedent.” Brief of Appellant at 12.
In support of this argument, Father cites to In re G.Y., 904 N.E.2d 1257 (Ind.
2009). However, Father misreads our supreme court’s opinion in In re G.Y.
[13] In In re G.Y., a mother was incarcerated when her child was twenty months old
for an offense—dealing in cocaine as a Class B felony—committed before her
child was conceived. The mother committed no crimes after the child was
born. While incarcerated, the mother had regular visitation with the child and
she completed a drug treatment program and a parenting class. She also made
arrangements for employment and suitable housing upon release from prison,
which was to occur as early as sixteen months after the termination hearing.
Moreover, the mother’s child was placed in foster care and doing well in that
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placement and there was no evidence that continued placement in that setting
while mother completed her prison term would be detrimental. Nonetheless,
the juvenile court terminated her parental rights.
[14] On appeal, the mother challenged whether termination of her parental rights
was in her child’s best interest. Our supreme court, based on mother’s good-
faith effort to engage in services while incarcerated and her lack of a criminal
history since her child’s birth, agreed with mother that DCS failed to present
clear and convincing evidence that termination of her parental rights was in her
child’s best interest. Id. at 1262.
[15] In re G.Y. is inapplicable to Father’s case for several reasons. First, our supreme
court concluded the DCS failed to present sufficient evidence that termination
was in child’s best interest. The opinion solely addressed whether there was
sufficient evidence to conclude the termination of the mother’s parental rights
was in the child’s best interest and does not prevent a court from considering
whether “frequent incarcerations” can result in a reasonable probability
conditions will not be remedied. Br. of Appellant at 12. Second, unlike In re
G.Y., where the mother did not commit any crimes after the birth of her child,
Father has continued criminal activity and pleaded guilty to crimes on two
separate occasions during the termination proceedings.
[16] This court has repeatedly recognized that “[i]ndividuals who pursue criminal
activity run the risk of being denied the opportunity to develop positive and
meaningful relationships with their children.” Castro v. State Office of Family &
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Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied. Child was
initially removed from Mother’s care due to Mother’s alleged drug use and
Father was incarcerated at that time and unable to care for Child. Father has
been incarcerated for a majority of Child’s life and has not significantly cared
for her in any capacity. Although we commend Father for completing
programs and classes while incarcerated, when he had the opportunity to parent
his child, Father failed to contact the DCS as required and in a very short time
ended up back in prison having committed several new crimes. See Wagner v.
Grant Cty. Dep’t of Pub. Welfare, 653 N.E.2d 531, 533-34 (Ind. Ct. App. 1995)
(holding sufficient evidence supported the juvenile court’s termination of
parental rights where father spent a majority of child’s life in jail and had new
charges pending against him at the time of the termination hearing). There is
sufficient evidence to support the juvenile court’s determination that there is a
reasonable probability that the conditions that resulted in Child’s placement
outside the home will not be remedied.4
[17] Father also argues the DCS failed to present sufficient evidence that termination
of his parental rights is in Child’s best interest and directs the court to In re A.B.,
888 N.E.2d 231 (Ind. Ct. App. 2008), trans. denied. There, we concluded the
4
As noted above, Father also contends the juvenile court erred in finding continuation of the parent-child
relationship poses a threat to Child’s well-being. However, Indiana Code section 31-35-2-4(b)(2)(B) is written
in the disjunctive and requires only one element in that subsection be proven to support termination of
parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we conclude the evidence
is sufficient to show a reasonable probability the conditions resulting in Child’s removal will not be remedied,
we need not also determine whether the juvenile court erred in concluding continuation of the parent-child
relationship posed a threat to Child’s well-being.
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recommendation of Guardian ad Litem and family case manager alone “may
not serve as a basis for termination of parental rights.” Id. at 239. While Father
accurately points out relevant case law, this court has held the
“[r]ecommendations of the case manager and court-appointed advocate, in
addition to evidence that the conditions resulting in removal will not be remedied, are
sufficient to show by clear and convincing evidence that termination is in the
child’s best interests.” In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014)
(emphasis added), trans. denied.
[18] As noted above, there is sufficient evidence that the conditions resulting in
Child’s removal will not be remedied. In addition, the DCS family case
manager and Guardian ad Litem both recommended termination.
[DCS]: Based on your work with this case, is
termination in the best interests between
[Child] and [Father]?
[FCM Boone]: Absolutely.
***
[GAL Counsel]: Do you believe the plan of adoption is in
[Child’s] best interests?
[GAL Bass]: Yes.
[GAL Counsel]: Do you believe that [Father] should be given
additional time to participate in and/or
complete services?
[GAL Bass]: I do not.
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Tr., Vol. II at 36, 59-60. Father also states that “[a] parent’s right to his child
may not be terminated solely because there is a better place for the child to
live.” Br. of Appellant at 16 (quoting In re A.B., 888 N.E.2d at 239). Father has
been incarcerated for a majority of Child’s young life and, as far as the record
demonstrates, has never provided a place for Child to live. Child has been
cared for by someone other than her natural parents for most of her life and is
in need of permanency and stability. Accordingly, DCS presented clear and
convincing evidence from which the juvenile court could conclude that
termination of Father’s parental rights was in Child’s best interest.5
Conclusion
[19] The juvenile court’s order terminating Father’s parental rights is not clearly
erroneous. Accordingly, we affirm the juvenile court’s judgment.
[20] Affirmed.
Najam, J., and Altice, J., concur.
5
We take the opportunity to note DCS’ brief provides very little substantive discussion with respect to
whether termination is in Child’s best interest. It is not enough the DCS has alleged and satisfied one of the
factors described in Indiana Code section 31-35-2-4(b)(2)(B). DCS must still prove termination is in Child’s
best interest and, although we conclude termination is in Child’s best interest in this case, whether DCS has
met its burden of proof is not a foregone conclusion. See In re G.Y., 904 N.E.2d at 1262.
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