In the Matter of the Termination of the Parent-Child Relationship of N.M. (Minor Child) and F.M. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 03 2019, 9:15 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT F.M. ATTORNEYS FOR APPELLEE
Nicholas A. Adams Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination July 3, 2019
of the Parent–Child Relationship Court of Appeals Case No.
of N.M. (Minor Child) 18A-JT-2549
and Appeal from the Allen Superior
Court
F.M. (Father),
The Honorable Sherry Hartzler,
Appellant-Respondent, Judge Pro Tempore
v. Trial Court Cause No.
02D08-1609-JT-203
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Bradford, Judge.
Case Summary
[1] F.M. (“Father”) is the biological father of N.M.1 In December of 2014, N.M.
was adjudicated to be a child in need of services (“CHINS”) due to dirty
housing, lack of supervision, and Father’s inability to care or supervise N.M.
due to incarceration. In September of 2016, the Department of Child Services
(“DCS”) petitioned for the termination of Father’s parental rights after Father
was consistently incarcerated. In December of 2018, the juvenile court ordered
that Father’s parental rights to N.M. be terminated. Father contends that the
juvenile court’s termination of his parental rights was clearly erroneous.
Because we disagree, we affirm.
Facts and Procedural History
[2] Father is a biological parent of N.M. (born July 10, 2011). On December 29,
2014, the juvenile court found N.M. to be a CHINS after admissions of dirty
housing conditions, lack of supervision, and Father’s inability to care or
supervise N.M. due to incarceration.2 Prior to N.M.’s CHINS adjudication, in
June of 2014, Father was sentenced to three years of incarceration after being
convicted of Class D felony receiving stolen property and five years of
1
Mother does not appeal the termination of her parental rights.
2
Prior to her removal and CHINS adjudication, N.M. was living with her Mother.
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incarceration with one year suspended to probation after being convicted of
Class D felony criminal trespass and found to be a habitual offender. As part of
his Parent Participation Plan (“PPP”), the juvenile court ordered Father to, inter
alia, refrain from criminal activity; obey the terms of his parole and probation;
cooperate with and maintain contact with DCS, the Guardian ad Litem
(“GAL”), or court-appointed special advocate (“CASA”); provide the family
case manager (“FCM”) with accurate personal/contact information; maintain
suitable housing and employment; enroll in anger management counseling at
Quality Counseling; complete a diagnostic assessment and psychological
evaluation; and submit to random drug screens and refrain from using illegal
substances.
[3] In October of 2015, Father was placed in community corrections. In December
of 2015, Father attempted to start therapy at Quality Counseling; however, the
director did not allow him to participate after his aggressive behavior caused her
to have safety concerns for the staff. That same month, the State alleged that
Father had violated the terms of his probation after testing positive for cocaine.
In January of 2016, Father admitted to the allegation and the court revoked one
year of his previously-suspended sentence. In September of 2016, DCS
petitioned for the termination of Father’s parental rights. In November of 2016,
Father pled guilty to Level 6 felony resisting law enforcement and was
sentenced to 270 days of incarceration. In April of 2017, Father was released
from incarceration and contacted DCS. FCM Melisa Casteel attempted to
contact Father but the telephone number he gave DCS was a nonworking
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number. Other attempts to locate Father through his last known address, social
media, and Father’s associates were likewise unsuccessful. In August of 2017,
Father was again incarcerated.
[4] In October of 2017, Father pled guilty to Level 6 felony resisting law
enforcement and was sentenced to two years on probation. Upon his release
from jail, Father attempted to contact FCM Casteel but did not leave his
contact information. FCM Casteel’s subsequent attempts to locate Father
through his probation officer were unsuccessful, and his whereabouts were
unknown. In December of 2017, Father was placed in Park Center for
rehabilitation. Father, however, was incarcerated later that month after being
terminated from Park Center for what he describes as “allegedly running drugs
in and out of rehab ah possession of ah paraphernalia stuff.” Tr. Vol. III p. 129.
The juvenile court held a series of evidentiary hearings on the termination
petition on October 25, 2017, March 27, 2018, and June 27, 2018. On
December 24, 2018, the juvenile court ordered that Father’s parental rights be
terminated.
Discussion and Decision
[5] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The
parent–child relationship is “one of the most valued relationships in our
culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.
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2003) (internal citations omitted). Parental rights, however, are not absolute
and must be subordinated to the child’s interests when determining the proper
disposition of a petition to terminate the parent–child relationship. Bester, 839
N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their
parental responsibilities their rights may be terminated. Id.
[6] In reviewing the termination of parental rights on appeal, we neither reweigh
the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of
Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.
We consider only the evidence and reasonable inferences therefrom which are
most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile
court has entered findings of facts and conclusions of law, our standard of
review is two-tiered. Id. First, we determine whether the evidence supports the
factual findings, second, whether the factual findings support the judgment. Id.
The juvenile court’s findings and judgment will only be set aside if found to be
clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences
drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.
2005). “A judgment is clearly erroneous if the findings do not support the
juvenile court’s conclusions or the conclusions do not support the judgment.”
Id.
[7] Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to
support a termination of parental rights. Of relevance to this case, DCS was
required to establish 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.
[and]
(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).3 In challenging the sufficiency of the evidence to
sustain the termination of his parental rights, Father contends that the juvenile
court erred by concluding that (1) the conditions that resulted in the removal of
N.M. would not be remedied, (2) the continuation of the parent–child
relationship posed a threat to N.M.’s well-being, (3) termination of his parental
3
It is not disputed that N.M. had been removed from Father for at least six months under a dispositional
decree, a required finding pursuant to Indiana Code section 31-35-2-4(b)(2).
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rights was in the N.M.’s best interests, and (4) there was a satisfactory plan for
the care and treatment of N.M.
I. Indiana Code Section 31-35-2-4(b)(2)(B)
[8] Father contends that there is insufficient evidence to establish a reasonable
probability that the conditions that resulted in N.M.’s removal would not be
remedied or that the continued parent–child relationship posed a threat to N.M.
Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive,
DCS was only required to establish one of the circumstances. We choose to first
address Father’s contention that the juvenile court erred by concluding that the
conditions which resulted in N.M.’s removal would not be remedied.
In determining whether the conditions that resulted in the
child[ren]’s removal…will not be remedied, we engage in a two-
step analysis[.] First, we identify the conditions that led to
removal; and second, we determine whether there is a reasonable
probability that those conditions will not be remedied. In the
second step, the trial court must judge a parent’s fitness as of the
time of the termination proceeding, taking into consideration
evidence of changed conditions—balancing a parent’s recent
improvements against habitual pattern[s] of conduct to determine
whether there is a substantial probability of future neglect or
deprivation. We entrust that delicate balance to the trial court,
which has discretion to weigh a parent’s prior history more
heavily than efforts made only shortly before termination.
Requiring trial courts to give due regard to changed conditions
does not preclude them from finding that parents’ past behavior
is the best predictor of their future behavior.
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In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (internal citations, quotations, and
footnote omitted, first and third set of brackets in original, second set added).
[9] The conditions that led to N.M.’s removal were dirty housing conditions, lack
of supervision by Mother, and Father’s inability to care or supervise N.M. due
to incarceration. DCS produced ample evidence to establish a reasonable
probability that these conditions would not be remedied. During these four-year
proceedings, Father has been incarcerated for all but approximately five
months. The record indicates that Father committed two felony offenses,
violated the terms of his probation, and was dismissed from a rehabilitation
center for allegedly peddling illegal substances. Father’s life of crime
demonstrates that he is unwilling to care for or provide supervision for N.M.,
much less refrain from being incarcerated. Given Father’s consistent pattern of
incarceration, the juvenile court did not abuse its discretion by concluding that
the conditions that led to N.M.’s removal would not be remedied. Therefore, it
is unnecessary for us to address Father’s contention that there was insufficient
evidence to conclude that the continued parent–child relationship posed a threat
to N.M.
[10] Father seemingly argues that the “overwhelming” PPP, lack of communication
by FCM Casteel, and FCM Casteel’s alleged bias “created a situation where
[Father] was prevented from having a meaningful opportunity to father his
child.” Appellant’s Br. p. 22. Father’s argument is merely an invitation for us to
reweigh the evidence and judge witness credibility, which we will not do.
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Perrine v. Marion Cty. Office of Child Services, 866 N.E.2d 269, 273–74 (Ind. Ct.
App. 2007). Moreover, the record indicates that FCM Casteel made numerous
attempts through multiple sources to communicate with Father but was unable
to because Father failed to provide adequate contact information. FCM Casteel
also testified that she was willing to stagger the services required in the PPP to
prevent Father from having to start all fifteen at once. The only person Father
has to blame for creating a situation where he was prevented from being able to
parent N.M. is himself.
II. Indiana Code Section 31-35-2-4(b)(2)(C)
[11] Father contends that there is insufficient evidence to support the juvenile court’s
conclusion that termination of his parental rights was in N.M.’s best interests.
We are mindful that, in determining what is in the best interests of the child, the
juvenile court must look beyond factors identified by DCS and consider the
totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).
The juvenile court need not wait until a child is irreversibly harmed before
terminating the parent–child relationship because it must subordinate the
interests of the parents to those of the children. McBride v. Monroe Cty. Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have
previously held that recommendations from the FCM and CASA to terminate
parental rights, in addition to evidence that conditions resulting in removal will
not be remedied, is sufficient evidence to show that termination is in the child’s
best interests. In re J.S., 906 N.E.2d at 236.
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[12] FCM Casteel and GAL Michael Harmeyer both testified that termination of
Father’s parental rights was in N.M.’s best interests. While coupling that
testimony with our previous conclusion that there was sufficient evidence to
show that the conditions of removal would not be remedied is sufficient to
support the juvenile court’s termination of Father’s parental rights, it is not as
though this testimony is unsupported by other evidence in the record.
[13] The record indicates that Father has not had any contact with N.M. since
November of 2014 and that N.M. does not have a relationship with Father.
FCM Casteel testified that N.M. is “doing really well” in her foster placement.
Tr. Vol. II p. 235. FCM Casteel also noted that N.M. is doing well in school,
attending therapy, and “very attached to her foster parents.” Id. at 236.
Moreover, the record indicates that Father has anger issues and has failed to
comply with the juvenile court’s order to participate in services to manage said
issues. Throughout these entire proceedings, Father has not been permitted to
visit the DCS office due to a restraining order that was issued after he
threatened an FCM and the foster parents. FCM Casteel recalled a
conversation with Father in which
[Father] um began telling me that um I need to give him back his
daughter or I was going to have a bad time um and um you and
you know the foster parents were going to have a bad time and
he knew how to find us um and eventually I ended conversation
um because [Father] just continued to threaten me[.] I explained
to him that if did not stop I was going to have to end the
conversation[.] [H]e continued [and] I ended the conversation.
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Tr. Vol. III pp. 73–74. Father has not established that the juvenile court’s
determination that termination was in N.M.’s best interests was clearly
erroneous.
II. Indiana Code Section 31-35-2-4(b)(2)(D)
[14] Father contends that the juvenile court erred by concluding that adoption was a
satisfactory plan for the care and treatment of N.M. A satisfactory plan need
not be detailed but, rather, offer a general sense of the direction in which the
child will be going after the parent–child relationship is terminated. In re
S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). Here, the plan was for
N.M. to be adopted, which is sufficient evidence to support the juvenile court’s
conclusion. See In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d
258, 268, (Ind. Ct. App. 2004) (concluding that the plan for the child to be
adopted by either the current foster family or another family was a suitable plan
for the child’s future), trans. denied.
[15] The judgment of the juvenile court is affirmed.
Crone, J., and Tavitas, J., concur.
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