MEMORANDUM DECISION
Jun 08 2015, 7:50 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 ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, 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 Termination June 8, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: J.W. (Minor Child), 34A05-1411-JT-526
Appeal from the Howard Circuit
Court
R.W. (Father), The Honorable Lynn Murray, Judge
Appellant-Respondent, Cause No. 34C01-1405-JT-115
v.
The Indiana Department of Child
Services,
Appellee-Petitioner.
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Brown, Judge.
[1] R.W. (“Father”) appeals the involuntary termination of his parental rights with
respect to his son, J.W. Father raises one issue, which we revise and restate as
whether the evidence is sufficient to support the termination of his parental
rights. We affirm.
Facts and Procedural History
[2] On February 7, 2013, the Indiana Department of Child Services, Local Office
in Howard County (“DCS”) received a report that J.H. (“Mother,” and
collectively with Father, “Parents”) had given birth to J.W. the day before and
she had tested positive for methadone and benzodiazepines at the time of birth.1
The report indicated that J.W. was born drug positive and was suffering from
severe withdrawal, and that Parents had engaged in domestic violence at the
hospital. On March 12, 2013, DCS removed J.W. from Parents and placed him
in foster care. The next day, a petition alleging that J.W. was a Child In Need
of Services (“CHINS”) was filed alleging in part that: (A) Father “was also
1
The court also terminated Mother’s parental rights to J.W. On November 26, 2014, Mother filed a notice
of appeal under this cause number. On February 18, 2015, DCS filed a Motion to File Consolidated Brief
and to Set Brief Due Date, and on February 24, 2015, this court issued an order granting DCS’s motion and
ordering that DCS’s brief “be filed no more than thirty (30) days from the date on which [Mother’s] brief is
filed.” Docket (capitalization omitted). The notice of completion of transcript was entered on January 15,
2015, and accordingly Mother’s brief was due on February 16, 2015. Mother failed to submit a brief or file a
motion for an extension of time to file a brief, and DCS timely filed its brief on March 6, 2015. Because
Mother did not file a brief and does not participate in this appeal, we limit our recitation of the facts to those
pertinent solely to Father’s appeal.
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attending Premier Care methadone clinic and also tested positive for substances
that he did not have a prescription for”; (B) hospital staff had numerous
concerns for J.W.’s safety and specifically once found mother “passed out”
holding J.W. and had to remove J.W. from her arms, and on another occasion
found J.W. “completed [sic] covered, including his entire face, with a heavy
blanket trying to free himself” and hospital staff had a hard time waking
Mother; (C) Parents were banned from the hospital due to numerous
disturbances and were escorted from the property by police, and Mother “was
observed to have what appeared to be ‘choke marks’ on her neck and [Father]
had abrasions on his face”; and (D) Parents did not have suitable housing for
themselves or J.W. DCS Exhibit 2.
[3] On April 22, 2013, the court adjudicated J.W. a CHINS based on the
allegations in the petition. On May 20, 2013, the court held a dispositional
hearing and, following the hearing, entered an order (the “Dispositional
Order”) in which it in part ordered Parents to do the following: (1) cooperate
with DCS; (2) notify DCS of their contact information; (3) maintain contact
with DCS; (4) notify DCS of any cancellations of scheduled appointments
within twenty-four hours; (5) complete a parenting program; (6) follow the
visitation plan wherein any visits are subject to providing DCS with a negative
drug screen at the discretion of DCS; (7) not use any drugs or alcohol except to
the extent prescribed by a physician; (8) participate in random drug screens; (9)
obtain clean, suitable, and stable housing and allow DCS access into the home;
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(10) obtain and maintain gainful employment; and (11) participate in a
substance abuse assessment and follow all recommendations. The permanency
plan was for reunification.
[4] The court held a periodic review hearing on August 26, 2013, and found in part
that Father had not visited J.W. since August 8, 2013, due to failed drug
screens, he had not completed a substance abuse assessment, he had been
“minimally compliant with his parent educator and homemaker,” he had
obtained employment through Kokomo Cab, and he had “obtained housing.”
Id. On November 25, 2013, the court held another periodic review hearing and
found that Father had not complied with the case plan, had not enhanced his
ability to fulfill his parental obligations, had not visited the child consistently,
and had not cooperated with DCS. The court also found that Father had not
found suitable housing and that his visitation had been suspended due to
noncompliance with drug screens “and will be reinstated once [he] submit[s] a
negative drug screen.” Id.
[5] On March 3, 2014, the court held a permanency hearing and entered an order
in which it found that Father was not in compliance with the permanency plan
in the following ways: he did not visit with J W. from the middle of November
until the beginning of February, he did not participate in drug screens for over
two months and still needed to complete his substance abuse assessment, and
he had just begun participating in services with a Parent Educator and
Homemaker at the beginning of February. The court also found that “Father
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needs to obtain stable and safe housing. [He] is currently staying at Motel 6
and is working at Kokomo Cab.” Id.
[6] On May 16, 2014, DCS filed its Petition for Involuntary Termination of the
Parent-Child Relationship of J.W. with Parents (the “Termination Petition”).
On May 19, 2014, the court held a periodic review hearing and issued an order
in which it found that Father had not complied with the case plan, nor had he
enhanced his ability to fulfill his parental obligations. The court further found
that Father continued to be employed at Kokomo Cab and had tested positive
for methamphetamine, amphetamine, and oxycodone.
[7] On August 11, 2014, the court commenced a termination hearing. Kevin Jones
testified that he worked with Father providing homemaker and parent
education services, which included “employment, housing, transportation
assistance, and contact for regular random drug screens,” and Father had not
been compliant with services because “[m]any appointments were either missed
or canceled,” specifically noting that about fifty percent of the time Parents did
not show for the meetings, and that on other occasions they overslept or simply
forgot. Transcript at 5. He testified that in general, the phone number he had
been given to reach Father “was either shut off or did not work.” Id. He noted
that Father worked for Kokomo Cab, that housing had not been obtained,
noting that Father and Mother were living at Motel 6, which provided
“inappropriate space,” and that Father had not been attending a relapse
prevention program. Id. at 16.
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[8] Mother testified that after J.W.’s removal she lived with her paraplegic father to
help care for him, and DCS at one point told her she could not live there and
regain custody of J.W. because her father “had a sexual misconduct with a
minor” and was a registered sex offender. Id. at 39. She testified that she,
along with Father and her father, were living at Motel 6 in a room with two
double beds.
[9] Father testified that he has worked for Kokomo Cab since June 24, 2013, and
that he averages approximately $2,500-3,000 per month in earnings. When
asked if he had “struggled with the use of drugs throughout” the course of the
case, Father responded: “Uh, yeah, I mean a little bit,” and further testified that
he “dropped dirty for Meth one time. Then maybe some pain pills every now
and then because I’ve got a severe deformity in my left foot and leg . . . .” Id. at
49. Father admitted that the week before the hearing he tested positive for
Methadone and that he did not have a prescription for the pain pills he had
taken.
[10] Lesley Echelbarger, who served as the DCS family case manager beginning in
May 2013 (“FCM Echelbarger”), testified that J.W. had been removed from
Parents’ care for the past seventeen months, and that Father tested positive for
Suboxone during the first review period, for hydrocodone on September 4,
2013, for amphetamines on October 17, 2013, for methamphetamine on
December 17, 2013, for methamphetamine on May 9, 2014, for methadone on
July 22, 2014, and for methamphetamine on July 31, 2014. She also testified
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that Father did not always submit drug screens when requested, that at times
she would not have a correct cell phone number to contact him, that DCS did
not hear from him in December or January, and that he did not start substance
abuse treatment during that time. She indicated that between March and May
of 2014 Father began an Intensive Outpatient Program (“IOP”) for substance
abuse but that “he dropped out shortly after beginning.” Id. at 70. She noted
that Father’s visitations were suspended on numerous occasions but that he
would attend when they were not suspended, and that during the most recent
review period Father had not consistently cooperated with his parent educator.
[11] FCM Echelbarger further testified that at the time of the hearing Father
continued to be employed by Kokomo Cab and to live at Motel 6, that to date
he had not completed a parenting program or a drug treatment program, he had
not refrained from using drugs or alcohol, and that he was not currently
attending any treatment program. She testified that Father’s visits have not
progressed from fully supervised visits, that she did not believe the conditions
that led to J.W.’s removal would be remedied because Father continues to
struggle with substance abuse and had failed to maintain stable and safe
housing, and that J.W. is “absolutely thriving” in foster care. Id. at 77.
Regarding Father’s room at Motel 6, FCM Echelbarger explained that it was
not stable or safe because
[Mother] has her father living with her and [DCS] is aware that he was
registered as a sex offender and our policy prohibits [J.W.] being
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placed there with him, as well as the size and he’s a very, very active
boy. He’s almost out of the crib. He will be shortly so there’s no bed
for him. He’s just very active, climbing, running, playing, jumping
and the hotel room is clean but still very small for four people.
Id. at 78-79. She testified that termination was in J.W.’s best interest because he
needs a safe, stable environment. He needs an environment and
family members that are free from drugs. He needs to not live a
transient lifestyle not knowing if they’re going to have housing or not
knowing if he’s going to have to live in a hotel room. He needs to
know, he needs a future where his parents are free from drugs and he
won’t have to experience what his older sister experienced.
Id. at 79. She further testified that continuation of the parent-child relationship
posed a threat to J.W.’s well-being because “the continued drug use poses a
threat to him, the unsafe people that could be coming around, the buying of
drugs that are not prescribed. The risk for overdose with [J.W.] in their care.”
Id. at 80. She testified that the plan for the care and treatment of J.W. was
adoption.
[12] The termination hearing resumed on September 8, 2014, and FCM Echelbarger
testified that between the first hearing and that day Parents participated in two
requests for drug screens but failed to appear numerous other times for drug
screens. She testified that both Father and Mother had not been cooperative
with their parent educator or with their substance abuse treatment, that she had
not had contact with Father other than a request for a new parent educator, and
that although it had been reported through another party that Parents had a
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house, it had not been reported to her. She testified that her recommendation
that Father’s parental rights be terminated had not changed.
[13] On cross-examination FCM Echelbarger testified that J.W.’s current foster
mother was interested in adopting him and that it was in J.W.’s best interest to
be adopted by her. Parents’ counsel asked whether it was in J.W.’s “best
interest to be adopted by a person who’s in her sixties,” and FCM Echelbarger
responded: “That is something that we are in the process of considering, I mean
once we would have this decision.” Id. at 112. She noted that J.W. is “very
bonded to her and that is also something that we are considering. We’re
assessing it and considering it.” Id. at 112-113.
[14] DCS next called Sharon Leach, who was J.W.’s Court Appointed Special
Advocate (“CASA”), who testified that she prepared a report filed on July 30,
2014, regarding the case. Leach testified that J.W. “seems to be happy,
healthy” living with his foster mother. Id. at 124. When asked if termination of
Father’s parental rights was in J.W.’s best interest, Leach testified: “The thing
that concerns me is the drug use,” and that “if they can’t stay clean I think it’s
in J.W.’s best interest.” Id. at 126-127. Leach indicated that foster mother was
seventy years old and that she did not believe it was in J.W.’s best interest to be
adopted by someone who is seventy years old.
[15] Father was called by his counsel to the stand, and he testified that he has
worked for Kokomo Cab for fifteen months, works an average of six days per
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week, and averages about six or seven hundred dollars in take-home pay per
week. He stated that he has struggled with addiction to methamphetamine and
amphetamines for thirty years but that he believed that “for the most part” he
now had his addiction under control. Id. at 137. He testified that both he and
Mother moved into a three-bedroom home and that Mother’s father was also
residing in the home, although Mother’s father was “seeking his own residence
next month or the month after.” Id. at 140. He stated that he did not complete
IOP because it conflicted with his job, and that he was taking Suboxone as part
of a substance abuse treatment program. He testified that he was not on the
lease for the new home because they had been denied on previous lease
applications due to a previous eviction and his “background history . . . .” Id. at
154. On cross-examination, he testified that Mother’s father was on the lease
for the new home. When asked if Father was aware that “the lease states that
only the people on the lease are to reside unless their names are at the end of
the lease,” he responded: “I have no idea, I haven’t read the lease but he does
know I’m residing there.” Id. at 159.
[16] On October 27, 2014, the court entered a fourteen-page order granting
termination of the parent-child relationship between J.W. and Parents (the
“Termination Order”) which made specific findings consistent with the
foregoing. The Termination Order states in part:
16. On August 26, 2013, the court conducted a six month review
hearing at which the Parents appeared with public defender counsel
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Dechert. . . . The Court found . . . . Father had [] been provided with
regular supervised visitation with the child, however, his visitation had
been suspended since August 8, 2013 due to his failure to submit to
drug screens. Father had not completed his substance abuse
assessment and had been minimally compliant with his parent
educator and homemaker. Father had obtained employment through
Kokomo Cab. The Court found that all of the child’s needs were being
well met through his foster care placement and services. The casegoal
was reunification.
17. The court held a three month review hearing on November 25,
2013, at which the parents appeared with public defender counsel,
Dechert. The parents had been provided weekly supervised visitation
with the child and their attendance was sporadic at times. The parents
had failed drug screens over the review period which also disrupted
visitation. Visitation was suspended at the time of the hearing due to
non-compliance with drug screens to be reinstated once they submitted
a negative drug screen. . . . [N]either parent had participated in a
substance abuse assessment. The parents continued to be minimally
compliant with the Parent Educator. . . . Father continued to work at
Kokomo Cab. The parents were staying at Motel 6. The court found
that DCS was making reasonable efforts to provide services to the
parents and reunify family. . . .
18. The court conducted the twelve month permanency hearing on
March 3, 2014 . . . . The court found that . . . parents were not in
compliance with the case plan and no progress had been made toward
reunification. The parents had been provided weekly supervised
visitation with the child, however, they did not visit from the middle of
November 2013 until the beginning of February 2014. The parents
still needed to complete their substance abuse assessments so it could
be determined if they needed treatment. The parents had just began
participating in Parent Educator and Homemaker services again at the
beginning of February 2014. The parents were still staying at Motel 6
and [F]ather continued to work for Kokomo Cab. The Parents
informed the court that they were starting Intensive Outpatient
Program (“IOP”) on March 11, 2014. . . .
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19. The court conducted a three month review hearing on May 19,
2014 . . . . The parents did not have suitable or stable housing as they
had continued to live at Motel 6 since November 2013. The parents
were minimally compliant with their Parent Educator and were not
complying with IOP/Relapse Prevention Program at Community
Howard Behavioral Health. . . . Father had tested positive for
Methamphetamine, Amphetamine and Oxycodone. The Father
continued to be employed by Kokomo Cab. . . . The two casegoals
were either reunification or adoption.
*****
21. . . . . Since removal and placement in foster care, the child had
never been placed with the parents, as they have made minimal to no
progress towards their ability to provide for and safely care for the
child. The parents have failed to consistently participate with DCS
and service providers, and have failed to show a willingness or ability
to address their substance abuse addictions. The parents’ visitation
and participation has been inconsistent.
22. Kevin Jones had been providing homemaker and parenting
services to Parents since late April 2013. The parents were
inconsistent in attending appointments and would frequently no show
due to oversleeping or forgetting the appointments. Mr. Jones had
difficulty making contact with the parents due to their phone
frequently being shut off or not working. . . .
*****
26. Father admitted that he has struggled with his drug addiction for
thirty (30) years and that his drug of choice is Methamphetamine.
Father admitted to recently testing positive for Methamphetamine on
July 31, 2014. Father had not participated in drug treatment in the
CHINS case, as he maintained that his employment precluded his
participation. Father has been employed with Kokomo Cab since
June 2013.
27. Since DCS had removed the child, the parents had not submitted
to random drug screens consistently, had not followed the
recommendations of their substance abuse assessments, and had not
consistently attended visitation. The parents had not obtained
suitable, stable housing as they resided at a few different residences
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until they started staying at the Motel 6 several [sic] in November
2013. The Motel 6 was not suitable as it was a small room and the
parents resided with a convicted sex offender.
*****
29. Father’s substance abuse assessment recommended he attend IOP;
however, he dropped out of the program shortly after starting. When
Father submitted to requested drug screens, he also passed more than
he failed; however, Father tested positive for Hydrocodone on
September 4, 2013; Amphetamines on October 17, 2013;
Methamphetamines on December 17, 2013, May 8, 2014, and May 9,
2014; Oxycodone on May 9, 2014; Methadone on July 22, 2014; and
Methamphetamines on July 31, 2014.
30. The parents have not consistently attended visitation due to their
drug use and failure to submit to random drug screens when requested.
Although the parents would sometimes pass a drug screen, they would
then fail to submit to their next drug screen before scheduled visitation
could take place, causing visitation to be suspended again. The failure
to exercise the right to visit one’s child demonstrates a lack of
commitment to complete the actions necessary to preserve the parent-
child relationship. Lan[g] v. Starke County Office of Family & Children,
861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Visitation
between the child and the parents has not progressed from fully
supervised and visitation has only taken place at The Villages.
31. The parents have not made any sustained progress since the
removal of the child eighteen (18) months ago, as the parents have not
made the child a priority over their substance abuse. The child
deserves permanency, stability and structure that the parents are
unable to provide. The child deserves to [sic] a future with caregivers
who are drug free and not living a transient lifestyle. The child
requires the security of safe, nurturing environment and routine
providing him with stability.
*****
37. The child’s CASA, Sharon Leach, was appointed on September
13, 2013. . . . At the termination hearing, CASA Leach opined that
due to the parents continued drug use, the termination of parental
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rights was in the best interest of the child. CASA Leach submitted a
detailed report and testimony that supports her conclusions.
38. The court finds by clear and convincing evidence that it is
reasonably probable that the conditions that led to the removal and
that led to continued placement outside the home, namely parents’
inability to provide the child with a safe, suitable home free of
substance abuse, will not be remedied to the degree that they will be
able to provide the child with the nurturing, stable, and appropriate
care and environment that he requires on a long term basis. The
parents have not consistently cooperated with DCS or service
providers over the past eighteen (18) months. The parents have not
consistently participated in substance abuse treatment to address their
long term drug addictions. . . .
39. The court further finds by clear and convincing evidence that the
continuation of the parent-child relationship between the child and his
parents poses a threat to the well being of the child. A termination of
the parent-child relationship is in the best interest of the child because
the child needs permanency with caregivers who can provide him with
a nurturing environment that is secure and free of abuse and neglect
and meets the child’s needs until the child reaches the age of majority.
The parents have demonstrated no ability to parent the child or to
provide him with the nurturing, stable, safe environment that he
requires on a long term basis. . . . The Court finds that the Parent’s
[sic] inability to refrain from substance abuse, demonstrates their
inability to provide a safe, stable and caring environment for the child.
40. The court further finds by clear and convincing evidence that
termination of the parent-child relationship of the parents to the child
is in the best interests of the child in that further efforts to reunite the
parents and child are unlikely to succeed. The failure to terminate the
relationship will deny the child stability and permanency to which he
is entitled, and has too long been denied. It is in the child’s best
interests to have permanency, not perpetual foster care and uncertainty
in his life.
41. The court further finds by clear and convincing evidence that the
DCS has a satisfactory plan for the care and treatment for the child,
which plan is to place him for adoption.
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Appellant’s Appendix at 11-20.
Issue / Standard of Review
[17] The issue is whether the evidence is sufficient to support the termination of
Father’s parental rights. The involuntary termination of parental rights is the
most extreme measure that a juvenile court can impose and is designated only
as a last resort when all other reasonable efforts have failed. In re S.P.H., 806
N.E.2d 874, 880 (Ind. Ct. App. 2004). This policy is in recognition of the
Fourteenth Amendment to the United States Constitution which provides
parents with the right to establish a home and raise children. Id. However,
these protected parental rights are not absolute and must be subordinated to the
child’s interest to maintain the parent-child relationship. Id.; see also Egly v.
Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992) (noting
that the “purpose of terminating parental rights is not to punish parents, but to
protect the children”) (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 101 S.
Ct. 2153 (1981), reh’g denied). Although parental rights are of a constitutional
dimension, the law provides for the termination of these rights when parents are
unable or unwilling to meet their parental responsibilities. In re R.H., 892
N.E.2d 144, 149 (Ind. Ct. App. 2008). Moreover, a trial court need not wait
until a child is irreversibly harmed before terminating the parent-child
relationship. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d
185, 203 (Ind. Ct. App. 2003).
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[18] In order to terminate a parent-child relationship, DCS is required to allege and
prove, among other things:
(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.
Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. See Ind. Code § 31-35-2-8(a).
[19] In accordance with Ind. Code § 31-35-2-8(c), the trial court’s judgment contains
specific findings of fact and conclusions thereon. We therefore apply a two-
tiered standard of review. First, we determine whether the evidence supports
the findings, and second, we determine whether the findings support the
judgment. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147
(Ind. 2005). 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. In re L.S., 717 N.E.2d 204, 208 (Ind.
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Ct. App. 1999), reh’g denied, trans. denied, cert. denied, 534 U.S. 1161, 122 S. Ct.
1197 (2002); see also Bester, 839 N.E.2d at 147; In re A.N.J., 690 N.E.2d 716, 722
(Ind. Ct. App. 1997) (noting that this court 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”) (quoting Egly,
592 N.E.2d at 1235). Thus, if the evidence and inferences support the trial
court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[20] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. “Reviewing whether the
evidence ‘clearly and convincingly’ supports the findings, or the findings
‘clearly and convincingly’ support the judgment, is not a license to reweigh the
evidence.” Id. “[W]e do not independently determine whether that heightened
standard is met, as we would under the ‘constitutional harmless error standard,’
which requires the reviewing court itself to ‘be sufficiently confident to declare
the error harmless beyond a reasonable doubt.’” Id. (quoting Harden v. State,
576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v. California, 386 U.S. 18, 87
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S. Ct. 824 (1967), reh’g denied). “Our review must ‘give “due regard” to the trial
court’s opportunity to judge the credibility of the witnesses firsthand,’ and ‘not
set aside [its] findings or judgment unless clearly erroneous.’” Id. (quoting
K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office, 989 N.E.2d 1225, 1229
(Ind. 2013) (citing Ind. Trial Rule 52(A)).
Discussion
In his brief, Father challenges the Termination Order based upon the
requirements of Ind. Code § 31-35-2-4(b)(2)(B)-(D).
A. Remedy of Conditions
[21] We note that the involuntary termination statute is written in the disjunctive
and requires proof of only one of the circumstances listed in Ind. Code § 31-35-
2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we
limit our review to whether DCS established that there was a reasonable
probability that the conditions resulting in the removal or reasons for placement
of J.W. outside Father’s home will not be remedied. See Ind. Code § 31-35-2-
4(b)(2)(B)(i).
[22] In determining whether there exists a reasonable probability that the conditions
resulting in a child’s removal or continued placement outside a parent’s care
will not be remedied, a trial court must judge a parent’s fitness to care for his or
her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App.
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2013). Due to the permanent effect of termination, the trial court must also
evaluate the parent’s habitual patterns of conduct to determine the probability
of future neglect or deprivation of the child. Id. The statute does not simply
focus on the initial basis for a child’s removal for purposes of determining
whether a parent’s rights should be terminated, “but also those bases resulting
in the continued placement outside the home.” In re A.I., 825 N.E.2d 798, 806
(Ind. Ct. App. 2005), trans. denied. A court may properly consider evidence of a
parent’s prior criminal history, drug and alcohol abuse, history of neglect,
failure to provide support, and lack of adequate housing and employment.
McBride, 798 N.E.2d at 199. Moreover, a trial court “can reasonably consider
the services offered by the [DCS] to the parent and the parent’s response to
those services.” Id. In addition, “[w]here there are only temporary
improvements and the pattern of conduct shows no overall progress, the court
might reasonably find that under the circumstances, the problematic situation
will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). The
burden for the DCS is to establish “only that there is a reasonable probability
that the parent’s behavior will not change.” In re Kay L., 867 N.E.2d 236, 242
(Ind. Ct. App. 2007).
[23] In arguing that the court’s conclusion that the reasons for J.W.’s placement
outside the home will not be remedied, Father challenges certain findings in the
Termination Order that he did not comply with the Dispositional Order. He
argues that he has held steady employment with Kokomo Cab since June 2013,
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works six days per week, and averages $600-$700 per week in take home pay.
He asserts that he obtained “clean, stable, and suitable housing” when he began
living at Motel 6 in November 2013, noting specifically that “[h]is living
accommodations have all utilities consistently provided, and other families and
children live there.” Appellant’s Brief at 7. He maintains that to the extent the
court found in its Termination Order that the housing situation was not
acceptable because Mother’s father, a convicted child molester, was staying
there, Mother’s father is an invalid who is confined to a bed or wheelchair, and
further he would be moved out if it were the only issue keeping him from
reunifying with J.W. He further asserts that he now lives in a three-bedroom
home and states that he was compliant with the parent educator, although he
did not complete the program. He further asserts that he tested clean on a
majority of his drug screens and that he did not complete IOP both because he
and Mother could not participate at the same time and she was chosen to go
first, and because it conflicted with his employment schedule. He argues that
“he has made substantial progress and that DCS has failed, given his progress,
to prove that ‘the reasons for placement outside the home of the parents will not
be remedied’ . . . .” Id. at 8.
[24] To the extent that Father’s arguments ask this court to reweigh the evidence
presented, we note that we will not do so and will consider only the evidence
and reasonable inferences most favorable to the judgment. See Bester, 839
N.E.2d at 147.
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[25] As noted, the court framed the reason for J.W.’s removal as “parents’ inability
to provide the child with a safe, suitable home free of substance abuse . . . to the
degree that they will be able to provide the child with the nurturing, stable, and
appropriate care and environment that he requires on a long term basis,” and it
found by clear and convincing evidence that it is reasonably probable that the
conditions that led to the removal and that led to continued placement outside
the home would not be remedied because: “The parents have not consistently
cooperated with DCS or service providers over the past eighteen (18) months.
The parents have not consistently participated in substance abuse treatment to
address their long term drug addictions” and that “the Parent’s [sic] inability to
refrain from substance abuse demonstrates their inability to provide a safe,
stable and caring environment for the child.” Appellant’s Appendix at 19.
Thus, the court focused its conclusion regarding Ind. Code § 31-35-2-
4(b)(2)(B)(i) on Father’s lack of consistent cooperation with DCS service
providers, inconsistent participation in substance abuse treatment, and inability
to refrain from substance abuse.
[26] Based upon the court’s findings and the record, as discussed herein, we
conclude that clear and convincing evidence supports the trial court’s
determination that there was a reasonable probability that the conditions
leading to J.W.’s removal would not be remedied and that the court’s
conclusion is not clearly erroneous.
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B. Best Interests and Satisfactory Plan
[27] We next consider Father’s assertions that DCS failed to demonstrate that
termination of his parental rights was in J.W.’s best interests or that there is a
satisfactory plan for the care and treatment of J.W. Father argues that DCS did
not prove that termination was in J.W.’s best interest and “actually proved the
exact opposite” because “DCS’s ‘satisfactory plan’ is for JW to be adopted by
his seventy-year-old foster mother.” Appellant’s Brief at 9. Father argues that
“JW is an infant” and “[e]ven the CASA testified that such a place was not
acceptable.” Id.[28] First, we are mindful that in determining what is in the best interests of a child,
the trial court is required to look beyond the factors identified by the DCS and
to the totality of the evidence. McBride, 798 N.E.2d at 203. In so doing, the
court must subordinate the interests of the parent to those of the child. Id. The
court need not wait until a child is irreversibly harmed before terminating the
parent-child relationship. Id. Children have a paramount need for
permanency, which the Indiana Supreme Court has called a central
consideration in determining the child’s best interests. In re E.M., 4 N.E.3d at
647-648. However, “focusing on permanency, standing alone, would
impermissibly invert the best-interests inquiry . . . .” Id. at 648. This court has
previously held that the recommendation by both the case manager and child
advocate to terminate parental rights, in addition to evidence that the
conditions resulting in removal will not be remedied, is sufficient to show by
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clear and convincing evidence that termination is in the child’s best interests.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App.
2013), trans. denied. This court has previously recognized that “[i]ndividuals
who pursue criminal activity run the risk of being denied the opportunity to
develop positive and meaningful relationships with their children.” Castro v.
State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans.
denied.
[29] At the termination hearing on August 11, 2014, FCM Echelbarger testified that
it was in J.W.’s best interest that Father’s parental rights be terminated because
J.W needs safety, stability, and a drug-free environment. “He needs to know,
he needs a future where his parents are free from drugs and he won’t have to
experience what his older sister experienced.” Transcript at 79. When the
hearing resumed on September 8, 2014, she testified that her recommendation
had not changed. When asked if termination of Father’s parental rights was in
J.W.’s best interest, CASA Leach testified: “The thing that concerns me is the
drug use,” and that “if they can’t stay clean I think it’s in J.W.’s best interest.”
Id. at 126-127.
[30] Based on the totality of the evidence as discussed and set forth in the trial
court’s order, including the recommendation of FCM Echelbarger and CASA
Leach, and in light of our deferential standard of review, we conclude that the
court’s determination that termination was in J.W.’s best interests is supported
by clear and convincing evidence. See In re J.C., 994 N.E.2d 278, 290 (Ind. Ct.
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App. 2013) (observing that “[r]ecommendations of the case manager . . . in
addition to evidence the conditions resulting in removal will not be remedied,
are sufficient to show by clear and convincing evidence that termination is in
the child’s best interests”), reh’g denied; In re A.I., 825 N.E.2d at 811 (testimony
of court appointed advocate and family case manager, coupled with evidence
that conditions resulting in continued placement outside the home will not be
remedied, is sufficient to prove by clear and convincing evidence termination is
in child’s best interests), trans. denied.
[31] Also, to the extent Father suggests that DCS did not make the requisite
showing under Ind. Code § 31-35-2-4(b)(2)(D) that there is a satisfactory plan
for the care and treatment of J.W., we observe that Indiana courts have
traditionally held that for a plan to be “satisfactory” for the purposes of the
termination, it “need not be 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 A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014) (quoting
Lang v. Starke Cnty. Office of Family and Children, 861 N.E.2d 366, 375 (Ind. Ct.
App. 2007), trans. denied), trans. denied. A DCS plan is satisfactory if the plan is
to attempt to find suitable parents to adopt the child. Id. There need not be a
guarantee that a suitable adoption will take place, only that DCS will attempt to
find a suitable adoptive parent. Id. Accordingly, a plan is not unsatisfactory if
DCS has not identified a specific family to adopt the child. Id. Part of the
reason for this is that it is within the authority of the adoption court, not the
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termination court, to determine whether an adoptive placement is appropriate.
Id.[32] In Finding 41, the court found “by clear and convincing evidence that the DCS
has a satisfactory plan for the care and treatment for the child, which plan is to
place him for adoption.” When asked at the termination hearing about the
prospects of J.W. being adopted by foster mother, FCM Echelbarger testified
that DCS was “assessing it and considering it.” Id. at 112-113. Thus, at the
termination hearing, DCS presented adoption as its plan, which the court found
to be satisfactory. Despite Father’s suggestion to the contrary, DCS did not
present evidence of a final plan for adoption involving foster mother; rather, it
was in the process of considering her as an option. We cannot say that the
court’s finding that DCS’s plan of adoption for J.W. was satisfactory is clearly
erroneous.
Conclusion
[33] We conclude that the trial court’s judgment terminating the parental rights of
Father is supported by clear and convincing evidence. We find no error and
affirm.
Crone, J., and Pyle, J., concur.
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