In the Termination of the Parent-Child Relationship of: A.T.-S. (Minor Child), and B.S. (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 10 2018, 10:32 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 APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- April 10, 2018
Child Relationship of: A.T.-S. Court of Appeals Case No. 33A01-
(Minor Child), 1710-JT-2527
and Appeal from the Henry Circuit
B.S. (Father) Court
The Honorable Bob A. Witham,
Appellant-Respondent,
Judge
v. Trial Court Cause No. 33C01-
1609-JT-21
The Indiana Department of
Child Services,
Appellee-Petitioner.
Bradford, Judge.
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Case Summary
[1] Appellant-Respondent B.S.1 (“Father”) appeals the juvenile court’s order
terminating his parental rights in A.T.-S. (“Child”). Father raises the following
restated issue on appeal: whether the juvenile court’s termination order was
clearly erroneous. Father also argues that the termination proceedings were
tainted by a misunderstanding regarding the Interstate Compact on the
Placement of Children (“ICPC”). Because we disagree, we affirm.
Facts and Procedural History
[2] The biological mother and Father were living together in Father’s home in
California in September of 2012. During that time, Father was arrested for
misdemeanor domestic violence against Child’s mother while she was pregnant
with Child. Father pled guilty and was placed on probation. Father and
Child’s mother remained together and had Child in May of 2013. At some
point after Child was born, Father and Child’s mother separated. In January of
2015, Child’s mother moved to Indiana with Child while Father remained in
California.
[3] On May 4, 2015, Appellee-Petitioner the Indiana Department of Child Services
(“DCS”) filed a petition alleging Child to be a child in need of services
1
Child’s mother signed an adoption consent and does not join in this appeal.
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(“CHINS”).2 The petition was based in large part on the mother’s heroin abuse
issues and that Father, who was still in California, knew of her ongoing
substance abuse issues, but did nothing to protect Child from it. The juvenile
court appointed an attorney to represent Father.
[4] On May 14, 2015, the juvenile court held a pretrial conference, and Father
appeared telephonically and by counsel. Child’s mother entered a factual basis
upon which the juvenile court adjudicated Child a CHINS as to the mother. 3
Child was subsequently placed with a relative. (Ex. Vol. 4, 93).
[5] On July 13, 2015, the juvenile court held a fact-finding hearing as to Father.
(Ex. Vol. 4, 94). Father failed to appear, but was present by counsel. (Ex. Vol.
4, 94). The juvenile court attempted to contact Father using a telephone
number that he had provided to his counsel two different times during the
hearing. (Ex. Vol. 4, 94). Evidence was presented at the hearing, and the
matter was taken under advisement. (Ex. Vol. 4, 94).
[6] On July 22, 2015, the juvenile court entered its CHINS adjudication decree,
finding, inter alia, that based on Father’s criminal history, lack of relationship
with Child, and his “lack of recognition of the seriousness of these proceedings”
that Child was a CHINS. Ex. Vol. 4 p. 95.
2
A petition for Child’s half-brother G.W. was also filed at that time. G.W. is not Father’s child.
3
Child’s mother was the custodial parent at that time.
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[7] On September 18, 2015, the juvenile court held a combined review and
dispositional hearing. Father failed to appear, but was present by counsel. (Ex.
Vol. 4, 95). The juvenile court found that Father had not complied with Child’s
case plan and Child remained placed in a relative’s care. (Ex. Vol. 4, 95).
[8] On December 18, 2015, the juvenile court held a review hearing. Father failed
to appear, but was present by counsel. The juvenile court found that Father
had “failed to participate in the case or visit [Child].” Ex. Vol. 4 p. 50. On July
1, 2016, the juvenile court held a hearing on whether to cease reunification
efforts for Father. Father failed to appear, but was present by counsel. The
juvenile court ordered efforts with Father to cease. (Ex. Vol. 4 p. 116)
[9] On October 27, 2016, the juvenile court held a review hearing. Father appeared
telephonically and was represented by counsel. After the hearing, the juvenile
court found, inter alia, that Father had not complied with Child’s case plan.
(Ex. Vol. 4 p. 99). On January 19, 2017, the juvenile court held a review
hearing. Father failed to appear, but was present by counsel. The juvenile
court found, inter alia, that Father had not complied with Child’s case plan.
(Ex. Vol. 4 p. 100).
[10] Meanwhile, on September 23, 2016, DCS had filed its petition to terminate
Father’s parental rights. On April 20, July 13, and September 11, 2017, the
juvenile court held the evidentiary hearing on DCS’s petition to terminate
Father’s parental rights. (App. pp. 6-7). Father failed to appear at the April 20,
2017 hearing, but was present by counsel. Father did appear telephonically at
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the other two hearings. Based upon all of the evidence presented, the juvenile
court issued an order granting DCS’s petition for termination of parental rights
on September 28, 2017. In doing so, the juvenile court made the following
relevant findings:
18.) The Court conducted the trial proceedings on the termination
petition on 9/11/2017 at which Family Case Manager, Hannah
Burke, testified. The Court makes the following findings and
inferences from this testimony, for purposes of these termination
proceedings:
a) The Witness was employed by the Department of Child
Services as a Family Case Manager;
b) Witness was the family case manager with the Department of
Child Services for the majority of the case;
c) The Child’s CHINS involvement was due in part to Mother’s
substance abuse, and in part to Father’s inability or refusal to
provide the Child with a safe and stable home environment;
d) Father was asked about his criminal history at the time of the
Child’s removal, but stated that there was no criminal history;
e) The witness was able to find criminal history for Father, in
contradiction to Father’s statements;
f) Father had substance abuse issues, as determined by statements
from Mother and previous criminal convictions;
g) Father has domestic violence history, including domestic
battery on the Child’s Mother during the Mother’s pregnancy
with the Child;
h) During the criminal involvement, Father was also providing
care in a parental role to the Child’s half-sibling;
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i) Father did not provide DCS with any information as to
completing any treatment for substance abuse or domestic
violence;
j) Father has not complied with DCS or the Dispositional Order;
k) Paternity has been established in California through a
paternity action under cause 14FSO196;
l) Father was ordered to pay Child support for the Child;
m) The Court in Kings County California had issued a warrant
for Father in the paternity action for non-compliance with the
Court’s order;
n) Father did not seek to establish custody of the Child in the
pending paternity action;
o) Father has never visited the Child;
p) Father has not provided for the Child’s basic needs;
q) Father knew where the Child was prior to DCS involvement,
but did not come to Indiana to provide for her care;
r) Father has not seen the Child since well before the Child was
relocated to Indiana;
s) The Child is thriving in placement;
t) The Child is currently living with her half-brother, who is 7
years older than the Child;
u) The Child and her brother have been together through the
entirety of the Child’s life;
v) Child’s brother has provided the majority of the Child’s care
prior to removal;
w) Child and her brother are closely bonded and it would be
detrimental to separate the Children;
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x) Child’s brother is more of a Father-figure to the Child than the
Child’s Father;
y) Child has no relationship with Father. She is four years old
and has not seen Father since on or before her first birthday;
z) Throughout the duration of the CHINS matter, Father has
never come to Indiana to pursue reunification or provide for the
care of his Child;
aa) It would be detrimental for the Child to delay permanency in
an attempt to give Father more time to improve in his ability to
provide for the care of the Child;
bb) It is in the Child’s best interest for her Father’s parental rights
to be terminated and for her to be adopted; and
cc) Mother has signed a consent to adoption.
19.) The Court finds the following facts and inferences from the
testimony of Rachel Crabtree, who testified at the termination trial
on 9/11/2017:
a) The witness is employed by the Department of Child Services
as a Family Case Manager;
b) The witness has been the Family Case Manager for the Child
since May, 2017;
c) Father has not reached out to FCM and has had no
communication with the Department;
d) The Child is thriving in placement;
e) The Child is closely bonded with her half-brother;
f) The Child and her half-brother have been together for the
entirety of the Child’s life;
g) It would be detrimental to separate the Children;
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h) It is in the Child’s best interest to have her parental rights
terminated in regards to Father; and
i) Mother has signed a consent for adoption.
***
22.) The extensive facts and inferences that have been found above
lead to the following more categorical findings of fact now set forth:
a) The Child’s Father has failed to establish or maintain a
relationship with the Child since well before the opening of the
related CHINS proceedings in this county for the Child, and
including the period of approximately 2 years of the CHINS case
itself;
b) The Child’s Father has failed to benefit from multiple ordered
reunification services, indicating his inability or refusal to make
improvements in his ability to care for the Child. Father provided
no information to contradict evidence of substance abuse and
domestic violence. He provided no information as to treatment
or services for either substance abuse or domestic violence.
Despite the distance, Father could have utilized services available
to him in California to improve in his ability to care for the
Child. However, Father failed to do so, as he has not been
motivated to reunify with the Child.
c) None of the conditions resulting in the Child’s removal from
the parents’ home and care have been remedied or even
addressed by the Child’s Father.
***
25.) The Child’s DCS case managers and relative caregiver have all
testified that termination of the parent-Child relationship and
adoption of the Child are in her best interests. The Court agrees with
these opinions, and now accepts and adopts them as its own finding
of fact in these proceedings.
App. Vol. 2 pp. 44–47.
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Discussion and Decision
[11] This court has long had a highly deferential standard of review in cases
concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836
(Ind. Ct. App. 2001). When reviewing a termination of parental rights case, we
will consider only the evidence and reasonable inferences that are most
favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied. Thus, we will not reweigh the evidence or judge the
credibility of the witnesses. Id. We will only set aside the court judgment
terminating a parent-child relationship if it is clearly erroneous. In re B.J., 879
N.E.2d 7, 14 (Ind. Ct. App. 2008).
[12] The traditional right of a parent to establish a home and raise his children is
protected by the Fourteenth Amendment to the United States Constitution.
Bester v. Lake Cnty. Office of Family and Children, 839 N.E.2d 143, 145 (Ind. 2005).
Furthermore, we acknowledge that the parent-child relationship is “one of the
most valued relationships of our culture.” Id. However, parental rights are not
absolute and the law allows for the termination of such rights when a parent is
unable or unwilling to meet his responsibilities as a parent. In re T.F., 743
N.E.2d 766, 773 (Ind. Ct. App. 2001), trans denied. The purpose of terminating
parental rights is to protect the child, not to punish the parent. Id. The juvenile
court may terminate the parental rights if the child’s emotional and physical
development is threatened. Id. The juvenile court need not wait until the child
has suffered from irreversible harm. Id.
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[13] Before an involuntary termination of parental rights could occur in this case,
DCS is required to prove by clear and convincing evidence that:
(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.
***
(C) termination is in the best interests of the child[.]
Ind. Code § 31-35-2-4(b)(2). DCS’s burden of proof for establishing these
allegations in a termination case is one of “clear and convincing evidence.” In
re G.Y., 904 N.E.2d 1257, 1260–61 (Ind. 2009).
I. Termination Order
A. Conditions Resulting in Removal Not Likely to Be
Remedied
[14] “We begin by emphasizing that a trial court need not wait until a child is
irreversibly influenced by a deficient lifestyle such that his or her physical,
mental, and social growth is permanently impaired before terminating the
parent-child relationship.” Castro v. State Office of Family & Children, 842 N.E.2d
367, 372 (Ind. Ct. App. 2006). “When the evidence shows that the emotional
and physical development of a child in need of services is threatened,
termination of the parent-child relationship is appropriate.” In re L.S., 717
N.E.2d 204, 208 (Ind. Ct. App. 2002).
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[15] When determining whether there is a reasonable probability that a parent will
remedy the conditions resulting in their child’s removal from the home, a trial
court engages in a two-step inquiry. First the trial court “must ascertain what
conditions led to their placement and retention in foster care.” In re K.T.K., 989
N.E.2d 1225, 1231 (Ind. 2013). Second, the trial court must determine
“whether there is a reasonable probability that those conditions will not be
remedied.” Id. The statute does not simply focus on the initial reason or
reasons for removal, “but also those bases resulting in continued placement
outside the home.” In re A.I. v. Vanderburgh Cnty. OFC, 825 N.E.2d 798, 806
(Ind. Ct. App. 2005).
[16] Father argues that the evidence does not support the finding that there is a
reasonable probability that the conditions that resulted in Child’s removal will
not be remedied. We cannot agree. DCS and the juvenile court both noted
repeatedly over the course of the proceedings that Father failed to appear
telephonically for the vast majority of the hearings and did not respond to
DCS’s attempts to provide services or arrange visitation with Child. Father has
never visited Child despite the fact that he visits another child in St. Louis,
Missouri, several times a year. At the time of the termination hearing, Father
had not seen or even spoken to Child since approximately May of 2014. Given
Father’s history of not appearing at hearings, his lack of contact with DCS, and
his lack of effort to create and maintain a relationship with Child, we conclude
that the juvenile court did not err when it found that there was a reasonable
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probability that the conditions that resulted in Child’s removal would not be
remedied.
[17] Father claims that he was unable to visit because of his job, but when asked if
he could take a leave of absence or time off from his job, he replied “Yes.” Tr.
Vol. 3 pp. 29–30. A family case manager (“FCM”) testified that “besides
maintaining a source of income and stable housing” Father did nothing to
improve his ability to have a relationship with Child or to parent Child. Tr.
Vol. 2 p. 249. There is a great deal of evidence that shows that Father failed to
attend court hearings in person or telephonically, failed to respond to messages
from the juvenile court, he failed to keep in contact with DCS or his own
attorney, and did not visit Child or maintain contact with Child in any way.
Based upon the findings and other evidence before the juvenile court, it was not
clearly erroneous to conclude that there was a reasonable probability that
Father would not remedy the reasons for Child’s not being in his care.
II. The Child’s Best Interests
[18] Father also challenges the juvenile court’s legal conclusion that termination was
in Child’s best interests. When reviewing such claims, we are mindful of the
fact that the juvenile court is required to look beyond the factors identified by
DCS and consider the totality of the circumstances. McBride v. Monroe Cnty.
Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In doing
so, this court must subordinate the interests of the parent of the child involved.
Id.
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[19] In addressing whether continuation of the parent-child relationship is in Child’s
best interests, we note that FCM Hannah Burke testified that it was in Child’s
best interests to stay with and be adopted by the current relative placement.
Such testimony is sufficient to support the juvenile court’s conclusion in this
regard. See In re A.B., 887 N.E.2d 158, 170 (Ind. Ct. App. 2008). However,
additional evidence further supports the juvenile court’s conclusion. Child calls
her relative caregivers “mom and dad.” Tr. Vol. 3 p. 234. Child does not know
Father. In fact, it has been so long that Child has had contact with Father that
Child would not even be able to recognize Father’s voice. “[S]he doesn’t have
any kind of relationship with him at no fault of her own[.]” Tr. Vol. 3 p. 237.
[20] FCM Rachel Crabtree testified that adoption and termination of parental rights
were in Child’s best interests. Her current placement also testified that it would
be detrimental to Child if she were taken away from her half-brother and placed
with Father in California. Child and her half-brother are “closely bonded with
each other” and her half-brother has always looked out for her. Tr. Vol. 3 p.
34.
[21] In sum, Father’s complete lack of effort to have a relationship with Child, as
well as his lack of effort to participate in the CHINS proceedings and receive
services from DCS, support the juvenile court’s decision to terminate his
parental rights. We decline his invitation to reweigh and reassess the evidence
related to the challenged findings. We therefore conclude that the juvenile
court did not clearly err in terminating Father’s parental rights in Child.
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III. Interstate Compact on the Placement of Children
[22] Father also argues that DCS’s misunderstanding of the ICPC process and its
relevancy to this case “infected” the termination proceedings. Appellant’s Br.
p. 5. The ICPC, enacted in all fifty states, “provides a mechanism by which
children can be sent to new foster or adoptive homes across state lines.” Bester
v. Lake Cnty. Office of Family and Children, 839 N.E.2d 143, 145 n.2 (Ind. 2005).
The ICPC “includes a reporting requirement that allows a receiving state to
investigate the fitness of the proposed home and to determine whether the child
may be placed according to a proposed plan.” Id. The conditions for
placement under the ICPC “are designed to provide complete and accurate
information regarding children and potential adoptive parents from a sending
state to a receiving state and to involve public authorities in the process in order
to ensure children have the opportunity to be placed in a suitable environment.”
In re Adoption of Infants H., 904 N.E.2d 203, 208 (Ind. 2009).
[23] However, this court has squarely held that “the ICPC does not apply to
placement with an out-of-state parent.” D.B. v. Ind. Dep’t of Child Servs., 43 N.E.
3d 599, 604 (Ind. Ct. App. 2015). Article III of the ICPC sets forth the
conditions for placement out of state:
(a) A sending agency may not send, bring, or cause to be sent or
brought into any other party state a child for placement in foster
care or as a preliminary to a possible adoption unless the sending
agency complies with each requirement under article III and with
the receiving state’s laws governing the placement of children.
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(b) Before sending, bringing, or causing any child to be sent or
brought into a receiving state for placement in foster care or as a
preliminary to a possible adoption, the sending agency shall
furnish the appropriate public authorities in the receiving state
written notice of the intention to send, bring, or place the child in
the receiving state....
Ind. Code § 31-28-4-1 art. III. It is clear from the language of the statute that
the ICPC only applies to the placement of a child in foster care or as a
preliminary to a possible adoption. Child was brought to Indiana by his
mother. Child was not sent to Indiana to live in foster care or with a pre-
adoptive parent. Therefore, to the extent that the juvenile court’s termination
order relied on the ICPC and Father’s failure to successfully go through the
process, we discount that basis of the ruling.
[24] The judgment of the juvenile court is affirmed.
Baker, J., and Kirsch, J., concur.
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