In the Matter of the Involuntary Term. of the Parent-Child Relationship of: H.B., E.B., and D.B. (Minor Children) A.B. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Dec 21 2016, 8:25 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert T. Miller Gregory F. Zoeller
Lake Village, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary December 21, 2016
Termination of the Parent-Child Court of Appeals Case No.
Relationship of H.B., E.B., and 56A04-1605-JT-1054
D.B. (Minor Children) Appeal from the Newton Circuit
Court
A.B. (Father), The Honorable Jeryl F. Leach,
Appellant-Respondent, Judge
Trial Court Cause Nos.
v. 56C01-1507-JT-2, -3, -4
The Indiana Department of
Child Services,
Appellee-Petitioner
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 1 of 13
Crone, Judge.
Case Summary
[1] A.B. (“Father”) appeals the trial court’s order involuntarily terminating his
parental relationship with his minor children H.B., E.B., and D.B. (collectively
“the Children”). We affirm.
Facts and Procedural History
[2] The facts most favorable to the trial court’s termination order indicate that H.B.
was born in December 2001, E.B. was born in June 2005, and D.B. was born in
June 2007. C.B. (“Mother”) 1 is the natural mother of the Children, and Father
is the natural father of the children. The Children have lived only with Mother
since 2010 because Father became incarcerated following his conviction for
class A felony dealing in cocaine. His projected release date is August 10, 2022.
[3] In June 2013, the Newton County Department of Child Services (“DCS”)
received a report that Mother was abusing drugs, that there was a lack of food
in the home, and that the Children lacked supervision. DCS received a second
similar report in July 2013. Thereafter, DCS removed the Children from the
home and filed petitions alleging that the Children were children in need of
services (“CHINS”). On August 5, 2013, the trial court adjudicated the
Children as CHINS.
1
As noted later in our opinion, Mother voluntarily consented to the termination of her parental rights and
does not participate in this appeal. Consequently, we decline to provide a detailed recitation of those facts
relevant only to the termination of Mother’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 2 of 13
[4] A dispositional decree was entered on September 13, 2013. Pursuant to the
decree, Father was ordered to maintain monthly contact with DCS, visit the
Children as permitted by the correctional facility, participate in services offered
while incarcerated, and inform DCS of any changes in his sentence or location.
The record indicates that during the pendency of the CHINS case, the Children
visited with Father in prison once or twice per month, except for a year-long
period during which visitation arrangements could not be made with the
correctional facility. Due to Father’s incarceration and the year-long lapse in
contact with the Children, his relationship with the Children can be described
as “distant.” Tr. at 36.
[5] At the time of their removal from the home, the Children were initially placed
with their paternal grandparents. In August 2014, the Children were moved
into foster care. The Children’s placement within the foster care system has
changed multiple times, but in May 2015, the Children were placed with their
current foster family, which is a pre-adoptive placement.
[6] In July 2015, DCS filed its petitions to terminate the parental rights of both
Mother and Father. Following a factfinding hearing on December 11, 2015,
the trial court found and concluded that there is a reasonable probability that
the conditions that resulted in the Children’s removal from and continued
placement outside the home will not be remedied by either parent. Specifically,
the trial court found that Mother had failed to comply with the trial court’s
orders for an extended period of time and had voluntarily consented to the
termination of her parental rights. Regarding Father, the trial court found that
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 3 of 13
he had been incarcerated since 2010 and his earliest projected release date is in
2022. H.B. will be past the age of majority and E.B. and D.B. will be near the
age of majority by the date of Father’s earliest possible release.
[7] The trial court also found and concluded: (1) that there is a reasonable
probability that the continuation of the parent-child relationship between the
Children and both Mother and Father poses a threat to the well-being of the
Children because neither parent is able to provide for the basic needs of the
Children; (2) termination of the parent-child relationship between both parents
and the Children is in the Children’s best interests because they need stability
and support that the parents are unable to provide: and (3) DCS has a
satisfactory plan for the care and treatment of the Children, which is adoption
by the family with whom the Children are currently placed. Accordingly, the
trial court determined that DCS had proven the allegations of the petitions to
terminate parental rights by clear and convincing evidence and therefore
terminated Mother’s and Father’s parental rights. Only Father appeals.
Additional facts will be provided as necessary.
Discussion and Decision
[8] “The purpose of terminating parental rights is not to punish the parents but,
instead, to protect their children. Thus, although parental rights are of a
constitutional dimension, the law provides for the termination of these rights
when the parents are unable or unwilling to meet their parental
responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation
omitted). “[T]ermination is intended as a last resort, available only when all
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 4 of 13
other reasonable efforts have failed.” Id. A petition for the involuntary
termination of parental rights must allege in pertinent 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.
…
(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). DCS must prove each of these allegations by clear
and convincing evidence. Bester v. Lake Cty. Office of Family & Children, 839
N.E.2d 143, 148 (Ind. 2005); Ind. Code § 31-37-14-2. If the trial court finds that
the allegations in a petition are true, the court shall terminate the parent-child
relationship. Ind. Code § 31-35-2-8(a).
[9] “We have long had a highly deferential standard of review in cases involving
the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d
85, 92 (Ind. Ct. App. 2014).
We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Where the trial court enters findings
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 5 of 13
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.
Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings
do not support the trial court’s conclusions or the conclusions do not support
the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).
[10] Father asserts that DCS presented insufficient evidence to support the trial
court’s conclusion that there is a reasonable probability that the conditions that
resulted in the Children’s removal from and continued placement outside of his
care will not be remedied or that continuation of the parent-child relationship
between Father and the Children poses a threat to the Children’s well-being.
Father also challenges the sufficiency of the evidence that termination of his
parental rights is in the Children’s best interests. We will address his arguments
in turn.
Section 1 – The evidence supports the trial court’s conclusion
that there is a reasonable probability that the conditions that
resulted in the Children’s removal from and continued
placement outside of Father’s care will not be remedied.
[11] Father asserts that the evidence does not support the trial court’s conclusion
that there is a reasonable probability that the conditions that resulted in the
Children’s removal from and continued placement outside of his care will not
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 6 of 13
be remedied. In determining whether there is a reasonable probability that the
conditions that led to a child’s removal and continued placement outside the
home would not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.
Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must
ascertain what conditions led to their placement and retention in foster care.”
Id. Second, “we ‘determine whether there is a reasonable probability that those
conditions will not be remedied.’” Id. (citations omitted). In the second step,
the trial court must judge a parent’s fitness at the time of the termination
proceeding, taking into consideration evidence of changed conditions, and
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.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989
N.E.2d at 1231). Although trial courts are required to give due regard to
changed conditions, this does not preclude them from finding that a parent’s
past behavior is the best predictor of their future behavior. Id.
[12] The uncontroverted evidence indicates that Mother’s neglect and substance
abuse are the conditions that led to the Children’s initial removal from the
home and their continued placement in foster care. Although Father asserts
that the Children’s removal “did not have anything to do with” him, the
removal occurred while Father was incarcerated. Appellant’s Br. at 13. Thus,
the primary condition for the Children’s removal and continued placement
outside the home as to Father was Father’s inability to provide care and
supervision for them due to his incarceration. Regarding H.B., the trial court
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 7 of 13
found that there is a reasonable probability that this condition will not be
remedied because Father will remain incarcerated until his earliest possible
release date in August 2022, and H.B. will be past the age of majority on that
date. Regarding E.B. and D.B., the trial court found that they will be nearing
the age of majority by that date. Based upon Father’s undisputed inability to
care for the Children at the time of the termination proceeding, and his
continued incarceration for at least another seven years, the trial court found
clear and convincing evidence that there is a substantial probability of future
neglect or deprivation of these Children by Father.
[13] Father relies on K.E. v. Indiana Department of Child Services., 39 N.E.3d 641 (Ind.
2015), to support his claim that the fact of his incarceration alone is insufficient
to support a conclusion that there is a reasonable probability of non-remedy of
the conditions for removal. However, K.E. is readily factually distinguishable
from the instant case. In K.E., our supreme court reversed the trial court’s
termination order of a father who was incarcerated at the time of the child’s
removal and remained so through the termination hearing. Id. at 647, 652.
Although the father was not set to be released from incarceration for two years
after the termination hearing, our supreme court found that the father had
“made substantial efforts towards bettering his life” through his participation in
twelve programs that were available during his incarceration that targeted
parenting and life skills, along with addressing his substance abuse. Id. at 648-
49. In addition, the father in K.E. maintained regular contact and visits with
his child while incarcerated through visitation and nightly phone calls, and he
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 8 of 13
testified that he had made arrangements for housing and employment upon his
release. Id. at 647.
[14] Here, while the evidence shows that Father has participated in some positive
programs while incarcerated, we discern that none of them are specifically
targeted toward parenting skills or addressing his admitted substance abuse
issues. Tr. at 34. Father concedes that his relationship with the Children is
“distant” due to the lack of any contact or visitation for an entire year of his
incarceration. Id. at 36. Most significantly, Father will remain incarcerated for
at least another seven years of the Children’s lives. Therefore, unlike the father
in K.E., Father is simply unable to take steps to establish a stable life for himself
upon his release, let alone for the Children. Indeed, when asked about his plans
upon his release regarding his Children, Father testified, “I mean … I don’t
know.” Id. at 37. In other words, Father is “obviously helpless to remedy [the
conditions that led to the Children’s removal] within a meaningful timeframe.”
Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App.
2006), trans. denied. Thus, while we recognize that “release date alone is not
determinative,” see K.E., 39 N.E.2d at 648, it is a significant consideration in the
instant case and, when coupled with the other evidence in the record, is
sufficient to support the trial court’s conclusion that there is a reasonable
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 9 of 13
probability that the conditions that resulted in the Children’s removal and
continued placement outside of Father’s care will not be remedied. 2
Section 2 – The evidence supports the trial court’s conclusion
that termination of Father’s parental rights is in the
Children’s best interests.
[15] Father also asserts that the evidence does not support the trial court’s
conclusion that termination of his parental rights is in the Children’s best
interests. In determining the best interests of a child, the trial court must look
beyond the 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). “In doing so, the trial
court must subordinate the interests of the parent to those of the child.” Id.Children have a paramount need for permanency, which our supreme court has
deemed a central consideration in determining a child’s best interests. E.M., 4
N.E.3d at 647-48. Courts need not wait until a child is harmed irreversibly
before terminating the parent-child relationship. Id. The recommendations of
the case manager and the court-appointed special advocate, in addition to
evidence that there is a reasonable probability of non-remedied conditions, is
2
Indiana Code Section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of
parental rights, the trial court need only find that one of the three requirements of that subsection has been
established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
Ct. App. 2013), trans. denied. Because we have determined that sufficient evidence supports the conclusion
that the conditions that resulted in the removal of the Children will not be remedied, we need not address
Father’s argument as to whether sufficient evidence supports the conclusion that the continuation of the
parent-child relationship poses a threat to the well-being of the Children.
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 10 of 13
sufficient to show by clear and convincing evidence that termination of parental
rights is in the child’s best interests. J.S., 906 N.E.2d at 236.
[16] Here, both the family case manager and the court-appointed special advocate
opined that termination of Father’s parental rights is in the Children’s best
interests because, due to his incarceration, Father is unable to provide for the
Children or give them the stability that they need, and he will continue to be
unable to do so until one of the Children is an adult and the others are older
teens. Specifically, the family case manager testified that the Children have
already been “in limbo” for two and a half years and that they “need to move
on with their lives.” Tr. at 15. Similarly, the court-appointed special advocate
stated that “security is fundamental” for the Children. She noted that they had
been through five placements in the last few years and that the “constant
shuffling” is harmful to “their own senses of well[-]being.” Id. at 27. She
opined that leaving them in foster care would be detrimental and that they
instead need a permanent “sense of belonging.” Id. at 28. She elaborated that
the Children have a strong bond with their current pre-adoptive placement.
[17] Father relies on our supreme court’s opinion in In re G.Y., 904 N.E.2d 1257(Ind. 2009), to support his claim that the Children’s need for permanency and
stability are insufficient reasons to support the termination of his parental rights.
However, as was K.E., G.Y. is readily distinguishable from the instant case.
[18] In G.Y., the incarcerated mother challenged the trial court’s finding that
termination was in the child’s best interests based on his need for the
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 11 of 13
consistency and permanency provided by the pre-adoptive foster home in which
he had resided for two years. G.Y., 904 N.E.2d at 1261. In reversing the trial
court’s termination order, the court considered the child’s general need for
permanency and stability and concluded that, where the mother’s release from
prison was imminent and she had made remarkable efforts toward reunification
while incarcerated by obtaining suitable housing and gainful employment upon
her release, the evidence was insufficient to show that the child would be
harmed by remaining a foster care ward until he could be reunited with his
mother. Id. at 1265.
[19] Unlike the parent in G.Y., Father has been unable to make remarkable efforts
toward reunification while incarcerated as his scheduled release date is far from
imminent. Indeed, H.B. will have already reached adulthood upon his earliest
possible release, and E.B. and D.B. will each be close to the age of majority.
DCS presented substantial evidence that the Children not only need
permanency and stability, but also will be harmed by remaining in foster care
for an additional seven years. The evidence, when considered in its totality,
supports the trial court’s conclusion that termination of Father’s parental rights
is in the best interests of the Children.
[20] In sum, we will reverse a termination of parental rights only upon a showing of
clear error—that which leaves us with a definite and firm conviction that a
mistake has been made. C.A., 15 N.E.3d at 92-93. Based on the record before
us, we cannot say that the trial court’s termination of Father’s parental rights to
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 12 of 13
the Children was clearly erroneous. 3 We therefore affirm the trial court’s
judgment.
[21] Affirmed.
Riley, J., and Altice, J., concur.
3
At the conclusion of his brief, Father states that the trial court erred in denying a motion to correct error
filed by his attorney. A few sentences later, he switches his characterization of this alleged motion to a
motion to continue. Regardless of the characterization, Father has not included in his appendices a
chronological case summary of the entire proceedings, a copy of the alleged motion, or a copy of the trial
court’s ruling on the alleged motion in violation of Indiana Appellate Rules 50(A)(2)(a) and (b). Moreover,
other than his bald assertion of error, he fails to develop cogent argument on this issue and therefore it is
waived. See A.D.S., 987 N.E.2d at 1156 n.4 (parent’s failure to support argument with cogent reasoning
results in waiver on appeal), trans. denied; see also Ind. Appellate Rule 46(A)(8) (requiring that each contention
be supported by cogent reasoning with citations to authority).
Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016 Page 13 of 13