In re the Involuntary Termination of the Parent-Child Relationship of N.L. (Minor Child), and J.F. (Father) v. The Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 11 2018, 9:14 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth A. Johnson Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
Daniel G. Foote Abigail R. Recker
Indianapolis, Indiana Deputy Attorneys General
Indianapolis, Indiana
ATTORNEY FOR GUARDIAN AD
LITEM
DeDe K. Connor
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Involuntary May 11, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of N.L. (Minor 49A05-1712-JT-2759
Child), and Appeal from the Marion Superior
Court
The Honorable Marilyn A.
J.L. (Father), Moores, Judge
Appellant-Respondent, The Honorable Scott B. Stowers,
Magistrate
v.
Trial Court Cause No.
49D09-1606-JT-657
Court of Appeals of Indiana | Memorandum Decision 49A05-1712-JT-2759 | May 11, 2018 Page 1 of 18
The Indiana Department of
Child Services,
Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellee-Guardian ad Litem.
Bailey, Judge.
Case Summary
[1] J.L. (“Father”) appeals1 the trial court judgment terminating his parental rights
to his child, N.L. (“Child”). He raises one issue on appeal, which we restate as
whether the trial court clearly erred when it terminated his parental rights.
[2] We affirm.
Facts and Procedural History
[3] Child was born on May 16, 2012, and lived with Mother and Child’s siblings.
Father2 lived elsewhere.
1
Child’s Mother, J.G., (“Mother”) signed a consent for Child to be adopted. Mother does not participate in
this appeal.
2
Although the record does not disclose how Father established his paternity as to Child, the trial court
found—and it is undisputed—that Father is the biological Father of Child. Appellant’s App. Vol. II at 31.
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[4] On September 11, 2012, Father was charged with Strangulation, as a Class D
felony; Domestic Battery, as a Class D felony; Domestic Battery, as a Class A
misdemeanor; and Battery, as a Class A misdemeanor. On December 6, Father
pleaded guilty to Battery, as a Class B misdemeanor, and all of the other
charges were dismissed. Father was sentenced to 180 days, with credit for ten
days and 170 days suspended to probation.
[5] Beginning in October of 2013, Father lived with his girlfriend, R.M.
(“Girlfriend”), and her two daughters in Danville. In July 2014, Child began
living with Father and Girlfriend after Mother agreed to place Child with
Father under a temporary guardianship arrangement.
[6] On March 9, 2014, Father was charged with Operating a Vehicle While
Intoxicated Endangering a Person (Cause No. 32C02-1506-CM-780). On April
28, 2015, Father was again charged with Operating a Vehicle While Intoxicated
Endangering a Person (Cause No. 32C01-1505-CM-542). Father was released
on bond while both charges were pending. DCS Exhibit 24 at 1; Exhibit 28 at
1.
[7] On May 15, 2015, the Indiana Department of Child Services (“DCS”) filed a
child in need of services (CHINS) petition alleging that: Mother admitted to
using methamphetamine for approximately two years; she had untreated
mental health issues and unstable housing; and Father was unable to ensure
Child’s safety while Child was in Mother’s care. On the same day, the court
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held an initial hearing and authorized Child’s removal from Mother’s care and
placement with Father for a temporary trial home visit (TTV).
[8] On July 16, 2015, Girlfriend obtained a no-contact protective order against
Father due to his drunken, belligerent, and threatening behavior toward her and
her two daughters. Exhibit Vol. I at 32. On the evening of that same day,
Father drove away from the home with Child in the car. Id. He returned to the
home a short time later and was served with the no-contact order; however, the
police would not allow Father to drive away at that time due to his
intoxication. Id.
[9] On July 18, Father was arrested and charged with Invasion of Privacy, as a
Class A misdemeanor, after he violated the no contact order (Cause No. 32C01-
1507-CM-873). Upon his arrest, Father left Child with Girlfriend to be cared
for in her home. On July 20, DCS requested the removal of Child from
Father’s care due to Father’s arrest and allegations that he drove under the
influence on July 16 with Child in the car. On July 21, the court removed
Child from Father’s care and placed Child with his maternal grandmother
(“Grandmother”). Father remained incarcerated for approximately the next
two weeks, but was then released on bond.
[10] At a September 18, 2015, pretrial hearing in the CHINS case, Father waived his
right to a factfinding hearing and Child was adjudicated a CHINS. On the
same day, the court proceeded to a dispositional hearing and entered a
dispositional decree and parental participation order requiring Father to
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participate in services, including substance abuse assessment and treatment. In
late September, DCS referred Father to Hamilton Center for a substance abuse
assessment, but Father did not obtain the assessment.
[11] On September 29, Father was arrested and charged with Operating a Vehicle
While Intoxicated Endangering a Person, as a Class A misdemeanor, and
Driving While Suspended, as a Class A misdemeanor (Cause No. 32C01-1509-
CM-1223). On April 4, 2016, Father pleaded guilty to the following charges
pending in his four separate criminal cases:3 Invasion of Privacy and three
counts of Operating a Vehicle While Intoxicated Endangering a Person. Father
was sentenced accordingly and remained incarcerated for approximately
thirteen months, until November 4, 2016.
[12] On May 16, 2016, the court held a permanency hearing at which it noted that
Father was still incarcerated. At the request of DCS, the court changed Child’s
permanency plan to adoption. On June 3, 2016, DCS filed a petition to
terminate parental rights as to Child. At a December 9, 2016, permanency
hearing in the CHINS matter, the court noted that Mother had executed an
adoption consent for Child, and Father had been released from incarceration.
The court ordered Father to complete a substance abuse assessment and
random drug screens, and it authorized Father to have therapeutically
3
I.e., Cause No. 32C02-1506-CM-780 (March 9, 2014 charges); Cause No. 32C01-1505-CM-542 (April 28,
2015 charges); Cause No. 32C01-1507-CM-873 (July 18, 2015 charges); and Cause No. 32C01-1509-CM-
1223 (September 29, 2015 charges).
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supervised parenting time with Child. On December 29, DCS referred Father
to a substance abuse assessment, therapy, and random drug screens. DCS
never received any documentation from the service providers that Father had
participated in those services.
[13] On January 17, 2017, Father was arrested and charged with the following:
Operating a Vehicle While Intoxicated: Endangering a Person, as a Class A
misdemeanor; Operating a Vehicle While Intoxicated: Endangering a Person,
as a Level 6 felony; Operating Vehicle After Being Habitual Traffic Offender, a
Level 6 felony; Pointing a Firearm at Another, as a Level 6 felony;
Intimidation, as a Level 6 felony; Operating a Vehicle with a ACE of .15 or
more, as a Class A misdemeanor; and Operating a Vehicle with a ACE of .15
or More but where Defendant has a Prior Conviction, a Level 6 felony (Cause
No. 32C01-1701-F6-56). On April 13, the pointing a firearm and intimidation
counts were dismissed. At the time of the termination hearing, Father was still
incarcerated and a jury trial was pending for October 17, 2017.
[14] On October 11, 2017, the court held a trial on the termination petition. DCS
presented evidence that Child had been placed with Grandmother since July
2015, and that Child has not seen Father in all that time. Both Family Case
Manager (FCM) Teonna Branson (“FCM Branson”) and Guardian ad Litem
(GAL) LeShell Bartlett (“GAL Bartlett”) testified that Child was doing well in
his placement with Grandmother and that he was happy. FCM Branson
testified that Child does not like change and, when change happens, Child starts
to display bad behaviors.
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[15] Both FCM Branson and GAL Bartlett testified that they believed termination of
Father’s parental rights was in Child’s best interest because Child needs stability
and a permanent home. Neither FCM Branson nor GAL Bartlett believed
Father should be given additional time to participate in services because he had
completely failed to obtain any services in the two-plus years he had already
been given. Both noted that Father continues to be repeatedly incarcerated and
Child needs stability.
[16] DCS’s plan for Child’s care and treatment is adoption by Grandmother and her
husband, with whom one of Child’s biological siblings also lives. FCM
Branson testified that Grandmother was not willing to consider guardianship,
but wanted to adopt Child. GAL Bartlett testified that adoption was a
satisfactory plan for the care and treatment of Child.
[17] On November 8, 2017, the court issued its order terminating Father’s parental
rights to Child and entered the following findings:
Upon evidence presented, the Court now finds by clear and
convincing evidence:
1. [Father] is the father of [Child], a minor child.
2. [Child] was born on May 16, 2012, and is presently five (5)
years of age.
3. [Mother] is the child’s biological mother. She has signed
adoption consents and has been dismissed from this termination
action.
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4. A Child in Need of Services (“CHINS”) Petition was filed
under Cause Number 49D091505JC001630, on or about May 15,
2015, following allegations that [Child’s] mother was abusing
methamphetamine and had untreated mental health issues and
unstable housing.
5. The child was initially removed from [M]other’s custody and
placed with [Father] and [Father] intended to file for a change of
custody.
6. On or about July 16, 2015, an incident occurred in which the
child was left with [Father]’s then-girlfriend who obtained a
Protective Order against [Father]. [Father] violated the
Protective Order two days later by appearing at the home
intoxicated and pounding on her bedroom window demanding
entry.
7. At a July 21, 2015 “Detention Hearing,” the CHINS Court
removed the child from the care of Father and ordered the child
to be placed with his maternal grandmother.
8. On September 18, 2015, the Child was adjudicated to be a
CHINS as to [F]ather, when [Father] waived his right to a
“factfinding hearing.”
9. Also on September 18, 2015, the CHINS Court proceeded to
disposition as to [Father], and he was ordered to undergo a
Substance Abuse Assessment and follow all treatment
recommendations.
10. In September 2015, then FCM Tom Heath referred [Father]
for a Substance Abuse Assessment at the Hamilton Center in
Hendricks County. However, shortly thereafter, [Father] was
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arrested for Operating a Vehicle while Intoxicated, and the
service has not been completed.
11. During the pendency of the CHINS case, [Father] has been in
and out of jail, and has been incarcerated continually since
January 2017. He has not sent any letters or correspondence to
the child while incarcerated. On or about April 4, 2016, [Father]
entered into a plea agreement in Hendricks County, in which he
pled guilty to Invasion of Privacy; and three counts of Operating
a Vehicle While Intoxicated (endangerment).
12. During the periods of time he was not incarcerated, [Father]
did not reach out to the FCM for services, nor did he seek out
parenting time with the child. Between November 2016 and
January 2017, [Father] was released from jail and did not see the
child during that time.
13. [Father] has not seen his child since July 2015.
14. [Child] has been removed from his father’s care and custody
under a dispositional decree for at least six (6) months prior to
this termination action being filed on June 3, 2016.
15. The child has been placed in relative care with Maternal
Grandmother since his removal from Father’s custody in July
2015. This is a preadoptive placement. The child is happy and
doing well. He is well-bonded with the relative caregiver. There
are no safety concerns and a biological sibling is also in the
home.
16. The present FCM Teonna Branson has not referred any new
services for [Father]. However, the previously ordered services of
Substance Abuse Assessment and Random Drug Screens remain
open.
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17. There is a reasonable probability that the conditions that
resulted in the child’s removal will not be remedied by his father.
[Father] has had over two years and has not addressed his issues.
Sobriety and stability remain major concerns. Even during the
periods of time in which he was not incarcerated, he has failed to
avail himself of any services or parenting time. During his
periods of incarceration, he has not participated in any programs
which would improve his life.
18. Continuation of the parent-child relationship poses a threat to
the child’s well-being in that it would serve as a barrier to
obtaining permanency for him through an adoption when his
father is unable and unwilling to offer him permanency and
parent[ing]. The child has been in preadoptive relative care for
over two years. The child likes stability and doesn’t like change.
He no longer talks about his father.
19. Termination of the parent-child relationship is in the best
interest of the child. Termination would allow him to be adopted
into a stable and permanent home where his needs will be safely
met.
20. There exists a satisfactory plan for the future care and
treatment of the child, that being adoption.
21. The Guardian ad Litem agrees with the permanency plan of
adoption as being in the child’s best interests.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the parent-child relationship between [Child]
and his father [Father] is hereby terminated. All rights, powers,
privileges, immunities, duties and obligations, any rights to
custody, parenting time or support, pertaining to the relationship
are permanently terminated, including the need to consent to
adoption.
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Appellant’s Appendix, Vol II, at 31-34. This appeal ensued.
Discussion and Decision
Standard of Review
[18] Father maintains that the trial court’s order terminating his parental rights was
clearly erroneous. We begin our review of this issue by acknowledging that
“[t]he traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.”
Bailey v. Tippecanoe Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind.
Ct. App. 1996), trans. denied. However, a trial court must subordinate the
interests of the parents to those of the child when evaluating the circumstances
surrounding a termination. Schultz v. Porter Cty. Office of Family & Children (In re
K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child
relationship is proper where a child’s emotional and physical development is
threatened. Id. Although the right to raise one’s own child should not be
terminated solely because there is a better home available for the child, parental
rights may be terminated when a parent is unable or unwilling to meet his or
her parental responsibilities. Id. at 836.
[19] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove, among other things:
(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) [and] that termination is in the best interests of the child . . . .
Ind. Code § 31-35-2-4(b)(2) (2016). DCS need establish only one of the
requirements of subsection (b)(2)(B) before the trial court may terminate
parental rights. Id. DCS’s “burden of proof in termination of parental rights
cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs.
(In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).
[20] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Office of
Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.
denied. Instead, we consider only the evidence and reasonable inferences that
are most favorable to the judgment. Id. Moreover, in deference to the trial
court’s unique position to assess the evidence, we will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous.
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Judy S. v. Noble Cty. Office of Family & Children (In re L.S.), 717 N.E.2d 204, 208
(Ind. Ct. App. 1999). trans. denied.
[21] Here, in terminating Father’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains special findings and conclusions, we apply a two-tiered standard of
review. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.
2005). First, we determine whether the evidence supports the findings and,
second, we determine whether the findings support the judgment. Id.“Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). If the evidence and inferences support the trial court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[22] Father does not challenge the trial court’s findings of fact. Rather, he contends
that the trial court erred in its conclusions of law. Specifically, he alleges that
the trial court erred in concluding that he will not remedy the conditions that
resulted in Child’s removal and that the continuation of the parent-child
relationship poses a threat to the well-being of Child. He also challenges the
trial court’s conclusions that termination is in the best interests of Child and
that DCS has a satisfactory plan for Child’s care. Because Indiana Code
Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we address only whether
the trial court erred in concluding that Father’s continued relationship with
Child poses a threat to Child’s well-being, that termination is in Child’s best
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interests, and that there is a satisfactory plan for Child’s care. See Aikens v. Ind.
Dep’t of Child Servs. (In re I.A.), 903 N.E.2d 146, 153 (Ind. Ct. App. 2009).
Continuation of the Parent-Child Relationship
[23] Father contends that the trial court’s conclusion that continuation of the parent-
child relationship would pose a threat to Child is not supported by the evidence.
However, Father’s arguments are simply requests that we reweigh the evidence,
which we cannot do. Peterson v. Marion Cty. Office of Family & Children (In re
D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we must
determine whether the evidence most favorable to the judgment supports the
trial court’s conclusion. Id.; Quillen, 671 N.E.2d at 102.
[24] A trial court need not wait until a child is irreversibly influenced by a deficient
lifestyle such that his physical, mental, and social growth is permanently
impaired before terminating the parent-child relationship. Shupperd v. Miami
Cty. Div. of Family & Children (In re E.S.), 762 N.E.2d 1287, 1290 (Ind. Ct. App.
2002). The evidence need not reveal that the continued custody of the parent is
wholly inadequate for the child’s very survival; rather, it is sufficient to show
that the child’s emotional and physical development are threatened by the
parent’s custody. B.A. v. Ind. Dep’t of Child Servs. (In re C.A.), 15 N.E.3d 85, 92
(Ind. Ct. App. 2014). Moreover, it is appropriate for the trial court to consider
the parent’s history and patterns of behavior—including a history and/or
pattern of repeated incarcerations—when determining whether there is a
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substantial probability of future threat to the child’s well-being. E.M. v. Ind.
Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014).
[25] Here, the trial court’s conclusion is supported by the following evidence.
Father drove while intoxicated with Child in the car. He was subsequently
arrested, convicted, and incarcerated multiple times for driving while
intoxicated, and, at the time of the termination hearing, he was incarcerated on
three additional driving while intoxicated charges. Father has been in and out
of jail for Child’s entire life. Father has not seen, or attempted to see, Child
since July 2015, even during the brief periods when Father was not
incarcerated. Despite his history of alcohol abuse and criminal convictions
related thereto, Father has never attempted to obtain substance abuse treatment.
In fact, Father has obtained none of the services ordered by the court, nor has
he participated in any programs to improve his life while incarcerated. While
incarcerated, Father did not attempt to contact Child. Given Father’s repeated
incarcerations, failure to seek substance abuse treatment, and failure to see or
contact Child over the last two-plus years, both the FCM and the GAL in this
case testified they believe Father should not be allowed additional time to
obtain services before his parental rights are terminated. All of this evidence
clearly supports the trial court’s conclusion that continuation of the parent-child
relationship would pose a threat to Child. 4
4
Because we find the continued relationship with Father would pose a threat to Child, we do not address
whether Father has remedied the reasons for removal. However, given his continued pattern of driving while
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Best Interests of Child
[26] In determining whether termination of parental rights is in the best interests of a
child, the trial court is required to look at the totality of the evidence. A.S. v.
Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).
“A parent’s historical inability to provide adequate housing, stability[,] and
supervision coupled with a current inability to provide the same will support a
finding that termination of the parent-child relationship is in the child’s best
interests.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind.
Ct. App. 2006), trans. denied. “Additionally, a child’s need for permanency is an
important consideration in determining the best interests of a child, and the
testimony of the service providers may support a finding that termination is in
the child’s best interests.” In re A.K., 924 N.E.2d at 224. Such evidence, in
addition to evidence that continuation of the parent-child relationship poses a
threat to the children, is sufficient to show by clear and convincing evidence
that termination is in the child’s best interests. L.S. v. Ind. Dep’t of Child Servs.
(In re A.D.S.), 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.
[27] Again, Father’s contentions on this issue amount to requests that we reweigh
the evidence, which we will not do. Both the FCM and GAL testified that
termination of Father’s parental rights is in the Children’s best interests. They
intoxicated so as to endanger others—which is one of the reasons Child was removed from Father in the first
place—we believe the evidence would also support the trial court’s finding that Father has not remedied the
reasons for removal.
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specifically emphasized Child’s need for stability and Father’s past inability—
and probable future inability—to provide stability due to his pattern and history
of incarceration. Moreover, there was evidence that Child is doing well in his
placement with Grandmother and his biological sibling, and that Grandmother
wished to adopt him. Given the evidence that Child needs stability,
supervision, and care that Father did not provide in the past and cannot now
provide, we hold that the totality of the evidence supports the trial court’s
conclusion that termination is in Child’s best interests.
Satisfactory Plan for Child
[28] Father purports to challenge the sufficiency of Child’s permanency plan but, in
fact, he merely reasserts his arguments that his relationship is not a threat to
Child and that termination is not in Child’s best interests. Because Father has
presented no cogent argument as to how the permanency plan for Child is not
satisfactory, he has waived that issue on appeal. Ind. Appellate Rule 46(A)(8);
see also, e.g., Maraman v. City of Carmel, 47 N.E.3d 1218, 1223 (Ind. Ct. App.
2015), trans. denied.5
[29] Waiver notwithstanding, the evidence clearly established that DCS has a
satisfactory plan for Child’s care and treatment. Such a plan “need not be
5
In his Summary of the Argument, Father contends in a cursory fashion that he was “not afforded ‘all
reasonable efforts’ at reunification.” Appellant’s Br. at 17. However, Father provides no citation to
authority or the record, nor does he provide any cogent argument regarding this assertion; indeed, he fails to
even mention this assertion again. Therefore, it is waived. Id.Court of Appeals of Indiana | Memorandum Decision 49A05-1712-JT-2759 | May 11, 2018 Page 17 of 18
detailed, so long as it offers a general sense of the direction in which the child
will be going after the parent-child relationship is terminated.” In re D.D., 804
N.E.2d at 268 (citing Jones v. Gibson Cty. Div. of Family and Children (In re B.D.J.),
728 N.E.2d 195, 204 (Ind. Ct. App. 2000)). Here, the plan was for Child’s
adoption by Grandmother, who had been caring for Child for over two years at
the time of the termination hearing. The FCM and GAL testified that Child
was happy and doing well in his placement with Grandmother, that
Grandmother’s home was appropriate and safe for Child, and that one of
Child’s biological sibling also lived with Grandmother. Thus, the evidence
supports the trial court’s conclusion that adoption by Grandmother is a
satisfactory plan, and that conclusion is not clearly erroneous.
Conclusion
[30] The trial court did not clearly err when it terminated Father’s parental rights to
Child.
[31] Affirmed.
Crone, J., and Brown, J., concur.
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