in-the-matter-of-the-involuntary-term-of-the-parent-child-relationship-of ( 2015 )

MEMORANDUM DECISION
Nov 24 2015, 9:35 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Special Assistant to the State Public Attorney General of Indiana
Defender
Wieneke Law Office, LLC Robert J. Henke
Plainfield, Indiana Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary November 24, 2015
Termination of the Parent-Child Court of Appeals Case No.
Relationship of D.J., Minor Child, 52A04-1506-JT-519
and his Father, M.W., Appeal from the Miami Superior
Court
M.W.,
The Honorable Daniel C. Banina,
Appellant-Respondent, Judge
v. Lower Court Cause No.
52D02-1409-JT-6
Indiana Department of Child Services,
Appellee-Petitioner,
Vaidik, Chief Judge.
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Case Summary
[1] M.W. (Father) appeals the termination of his parental rights to his son, D.J. He
challenges the sufficiency of the evidence underlying the court’s termination
order. However, Father, who has been incarcerated for a Class B felony since
before D.J. was born, has never met or supported his son. In addition, Father
has never held a job and has a legal history that includes multiple felonies and a
probation violation. Father’s earliest release date is in three years. While
Father has been incarcerated, three-year-old D.J. is thriving with his foster
family that plans to adopt him and his younger biological half-sister.
Concluding there is sufficient evidence to support the trial court’s decision to
terminate the parent-child relationship, we affirm.
Facts and Procedural History
[2] D.J., the son of Father and J.J. (Mother), was born in October 2011. At the
time of D.J.’s birth, Father was incarcerated in the Howard County jail on
pending charges for conspiracy to commit attempted armed robbery as a Class
B felony. In January 2012, the Miami County Department of Child Services
(DCS) removed D.J. from Mother because of domestic violence between
Mother and her boyfriend. D.J. was initially placed with his maternal
grandparents. When they were no longer able to care for him, Father asked if
his mother could do so. However, because she had health problems and her
home was found to be unfit for a child, D.J. was placed with his current foster
family in August 2012.
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[3] Father was convicted of the Class B felony in January 2013 and sentenced to
fourteen years. Mother voluntarily consented to the termination of her parental
rights in May 2013. In September 2014, DCS filed a petition to terminate
Father’s parental rights.
[4] Testimony at the March 2015 hearing on the petition revealed that Father, who
has six prior felony convictions for robbery and was on probation at the time he
committed the Class B felony, has never held a job or supported D.J. The only
contact he has had with his son is through letters, which Father stopped writing
when he was asked to send them to DCS. Although Father testified that he is
hoping to participate in prison programs that will shorten his sentence, Father
testified that his earliest release date is February 2018.
[5] At the hearing, Father asked if D.J. could remain with the foster family until he
is released from prison. He explained that when he is released, he plans to live
with his girlfriend, whom he met as a pen pal and who has a son almost
Father’s age. If that relationship does not last the three years until his release,
Father plans to go to a shelter until he is able to find a job and housing.
[6] D.J.’s DCS case manager testified that it is not in D.J.’s best interest to wait
three years for Father’s release. D.J. is thriving with his foster family, and his
younger biological half-sister lives with them as well. DCS’s plan is for the
foster family to adopt both children.
[7] In May 2015, the trial court issued an order terminating Father’s parental
rights. Father appeals.
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Discussion and Decision
[8] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re
K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for
termination of that right when the parents are unwilling or unable to meet their
parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The
purpose of terminating parental rights is not to punish the parents, but to
protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999),
trans. denied.
[9] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id at 1229-1230.
[10] A petition to terminate parental rights must allege:
(A) that one (1) of the following is true:
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(i) The child has been removed from the parent for at
least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a description
of the court’s finding, the date of the finding, and the
manner in which the finding was made.
(iii) The child has been removed from the parent and has
been under the supervision of a local office or
probation department for at least fifteen (15) months
of the most recent twenty-two (22) months, beginning
with the date the child is removed from the home as a
result of the child being alleged to be a child in need of
services or a delinquent child;
(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.
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Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[11] Here, Father argues that there is insufficient evidence to support the
termination of his parental rights. Specifically, he contends that the evidence is
insufficient that there is a reasonable probability that the conditions that
resulted in D.J.’s removal or the reasons for placement outside the parent’s
home will not be remedied and that a continuation of the parent-child
relationship poses a threat to D.J.’s well-being.
[12] At the outset we note that Indiana Code section 31-35-2-4(b)(2)(B) is written in
the disjunctive. Therefore, DCS is required to establish by clear and convincing
evidence only one of the three requirements of subsection (B). We therefore
discuss only whether there is a reasonable probability that the conditions that
resulted in D.J.’s removal or the reasons for his placement outside the parents’
home will not be remedied.
[13] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to judge a parent’s
fitness at the time of the termination proceeding, taking into consideration
evidence of changed conditions, and balancing any recent improvements
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against habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. In so doing, trial courts have
discretion to weigh a parent’s prior history more heavily than efforts made only
shortly before termination, and courts may find that a parent’s past behavior is
the best predictor of his or her future behavior. Id. In addition, where a parent
is not living with another parent at the time of the child’s removal, the Court
should determine what led DCS to place the child in foster care rather than
with the other parent. In re B.D.J., 728 N.E.2d 195, 200-201 (Ind. Ct. App.
2000). Last, a parent’s testimony about future plans is not evidence upon which
a trial court can base its termination decision. Id. at 202, n.1.
[14] Here, our review of the evidence reveals that Father, who has never met or
supported D.J. and has never held a job, was incarcerated when his son was
born and later when the child was removed from Mother’s home. Father has
an extensive criminal history that includes six felony convictions, and he was
on probation at the time he committed the Class B felony. His earliest prison
release date is in three years. In addition, three-year-old D.J. is thriving with a
foster family that wants to adopt him and his younger biological half-sister.
The trial court’s conclusion that there was a reasonable probability that the
conditions resulting in D.J.’s removal or the reasons for placement outside the
home would not be remedied is not clearly erroneous.
[15] Affirmed.
Robb, J., and Pyle, J., concur.
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