In the Matter of the Termination of the Parent-Child Relationship of: J.M., (Minor Child) and B.G. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Jun 23 2017, 8:42 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Raymond P. Dudlo Curtis T. Hill, Jr.
Bamberger, Foreman, Oswald Attorney General of Indiana
and Hahn, LLP
Robert J. Henke
Evansville, Indiana
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination June 23, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of: 26A04-1702-JT-426
Appeal from the Gibson Circuit
J.M., (minor child), Court
and The Honorable Jeffrey F. Meade,
Judge
B.G. (father), Trial Court Cause No.
Appellant-Respondent, 26C01-1602-JT-23
v.
The Indiana Department of Child
Services,
Appellee-Petitioner.
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 1 of 15
Case Summary [1]
[1] Appellant-Respondent B.G. (“Father”) and M.M. (“Mother”) are the biological
parents of J.M., born in December of 2014. At the time, Father was
incarcerated, with an expected release date in June of 2021. When J.M. was
born, both he and Mother tested positive for THC, and J.M. was removed from
Mother’s care. Appellee-Petitioner the Indiana Department of Child Services
(“DCS”) petitioned to have J.M. declared a child in need of services
(“CHINS”). The juvenile court adjudicated J.M. a CHINS, and DCS later filed
a petition for the involuntary termination of the parents’ rights (“TPR
Petition”).
Following a hearing, the juvenile court terminated Father’s parental rights in
J.M., finding that there is a reasonable probability that the conditions which
resulted in J.M.’s removal and continued placement outside the home will not
be remedied, continuation of the parent-child relationship poses a threat to
J.M.’s wellbeing, termination of parental rights is in J.M.’s best interests, and
there is a satisfactory plan for the care and treatment of J.M. Father contends
that the juvenile court erred in finding that he was unlikely to remedy the
conditions that led to J.M.’s removal and that continuation of the parent-child
relationship posed a threat to J.M.’s well-being. Because we conclude that the
1
Mother voluntarily relinquished her parental rights to J.M. on September 8, 2016.
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 2 of 15
juvenile court did not err in finding that Father was unlikely to remedy the
conditions that led to J.M.’s removal, we affirm.
Facts and Procedural History
[2] On August 28, 2014, Father was sentenced to 540 days of incarceration for two
counts of possession of a precursor by a methamphetamine offender and four
years for dealing in methamphetamine and his previously-suspended ten-year
sentence for Class B felony methamphetamine manufacture was ordered
executed. Father’s current expected release date is in June of 2021.
[3] On December 11, 2014, J.M. was born with THC in his system, and Mother
tested positive for THC. On December 23, 2014, J.M. was removed from
Mother’s care and placed with foster parents. On December 30, 2014, DCS
filed its CHINS petition alleging the following:
The child is under the age of eighteen (18) and resides with his
mother, [Mother], in Gibson County, Indiana. On or about
December 23, 2014, said child’s mother tested positive for
methamphetamine and admitted use. Said child was born on
December 11, 2014, with THC in his system as evidenced by a
positive meconium test. Said child’s mother has a criminal
history concerning battery and intimidation. Said child’s mother
is currently on probation. Said child’s father is incarcerated for
charges relating to methamphetamine. Said child’s mother
testing positive for methamphetamine, said child’s meconium
testing positive for THC, and said child’s father being
incarcerated for methamphetamine related charges illustrates
their inability, refusal, or neglect to provide the child with
necessary supervision, which seriously impairs or seriously
endangers the child’s physical or mental condition. The child
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 3 of 15
needs care, treatment, or rehabilitation that the child is not
receiving and is unlikely to be provided or accepted without the
coercive intervention of the court.
DCS Ex. 1 pp. 107-18. J.M. was adjudicated a CHINS after Father stipulated
to the allegations on December 30, 2014, and Mother admitted to the material
allegations on February 5, 2015. On February 5, 2015, the court held a
dispositional hearing. On July 23, 2015, the court entered its dispositional
decree ordering Father to participate in services, including—but not limited
to—refraining from the use of drugs and alcohol, establishing paternity,
completing a parenting assessment and all recommendations, completing a
substance abuse assessment and all recommendations, submitting to random
drug screens, and attending visitation with J.M. On February 11, 2016, DCS
filed its TPR Petition.
[4] On October 19, 2016, the juvenile court held a hearing on the TPR Petition. At
the time of the termination hearing, Father was participating in Purposeful
Living Units Serve (“PLUS”) program and Department of Labor (“DOL”)
program, for each of which he could potentially receive a six-month sentence
reduction. Father admitted that he has struggled with methamphetamine
addiction for approximately ten years. Father has not participated in a
substance-abuse program since his incarceration because he does not yet qualify
for the program. However, Father admitted that he needed such treatment.
[5] DCS family case manager Brenda Shaw (“FCM Shaw”) was concerned about
Father’s drug use and testified that he will need long-term substance-abuse
treatment once he is released. FCM Shaw further testified that since his
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 4 of 15
removal from Mother’s care, J.M. has not returned. J.M. was placed with
foster parents from December 23, 2014 until June 30, 2016. At that point, J.M.
was placed in the care of a paternal uncle until August 17, 2016, when he
returned to the foster parents’ care. Court Appointed Services Advocate Joy
Jines (“CASA Jines”) testified that J.M. has been with his foster parents
“basically his whole life” and is bonded to them and that they nurture him and
meet his daily needs. Tr. p. 37. J.M.’s half-sibling, another child of Mother’s,
is also placed in the home with J.M. Additionally, his foster parents have
allowed J.M. to have visitation with his biological family, and they have
indicated that such visits would be allowed to continue.
[6] Both FCM Shaw and CASA Jines opined that termination of Father’s parental
rights was in J.M.’s best interests because J.M. needed permanency, which
Father would be unable to provide until J.M. was at least five or six years old.
FCM Shaw also opined that the continuation of the parent-child relationship
between Father and J.M. posed a threat to J.M.’s well-being “[d]ue to the
methamphetamine and the past criminal history and the lack of housing and the
[in]stability.” Tr. p. 53. DCS’s plan for J.M. upon the termination of Father’s
parental rights is adoption. On January 27, 2017, the court issued its order
terminating Father’s parental rights. The order provided, in part, as follows:
C. FACTS RELATING TO [J.M.]’S CONTINUED
REMOVAL FROM PARENTS’ HOME AND CARE:
REASONABLE PROBABLITY OF PARENT NOT
REMEDYING REASONS FOR REMOVAL, THREAT
TO [J.M.]’S WELLBEING
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 5 of 15
1. As previously stated, Father was incarcerated when the
child was born and throughout the duration of the CHINS
cause. Father was given the opportunity to appear
personally for the termination hearing, but refused to do
so.
2. Father’s earliest release date according to the Department
of Correction is June, 2021.
3. While Father has been incarcerated, Father has had
available to him multiple programs which make him
eligible for sentence reductions.
4. Father has not yet started the substance abuse treatment
program offered through the Department of Corrections,
despite being ordered to do so in February, 2014, over two
and a half years prior to the termination hearing.
5. Father admitted and the Court finds that Father has fought
with a methamphetamine addiction for the majority of his
adult life.
6. Father has attempted to address his addiction on and off
through his life, but was never successful.
7. Father has a criminal history spanning ten years and
multiple felony level crimes to which he either pled guilty
or was found guilty.
8. Father currently estimates that he could possibly obtain
two years’ worth of sentence reductions if he participates
in multiple programs.
9. Father believes that he could be released in “a little over
two years” if he completes the aforementioned programs
and petitions the sentencing court for a sentence
modification.
10. The Court cannot rely on a vague possibility of early
release when asked to determine the future of a child’s life.
While Father’s optimism is commendable, there is no
certainty that he will be available to parent his child until
at least five additional years of incarceration.
11. A child should not be forced to wait five (5) years for
permanency.
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 6 of 15
12. Father insists that his child should be placed with family,
but the Court notes that [J.M.] was briefly placed with
Father’s brother, at Father’s insistence, on June 20,2016.
That placement lasted a little over a month before Father’s
brother returned the child to his foster parents.
13. Father’s criminal history evidences a pattern of conduct
that is unlikely to be remedied. Father’s continued arrests
and convictions for drug related activities, despite
receiving multiple jail sentences over the course of his ten
year criminal history.
14. Father’s incarceration alone is not reason to terminate his
parental rights, but Father’s past history of continuously
reoffending and failure to address his methamphetamine
addiction is.
15. Overall, Father has failed to remedy the situation that
brought about the removal of the children. Based on the
pattern of behaviors and continuing pattern of substance
abuse by both Father, the Court finds that there is not a
reasonable probability the situation which brought about
the removal of the children is likely to be remedied. The
Court finds that Father’s past behavior is the best predictor
of his future behavior.
16. The Court does not discredit Father’s months of sobriety
while incarcerated, but when considering the total length
of involvement in the underlying CHINS, coupled with
Father’s habitual patterns of conduct, the Court simply
assigns more weight to Father’s conduct over the course of
history, and less to his recent accomplishments while
incarcerated. The Court finds no evidence that Father can
remedy the situation—his incarceration, drug use and
residential instability resulting therefrom—that brought
about the removal of his children from his care.
….
CONCLUSIONS
The Court concludes this Court has jurisdiction over the
parties and the subject matter of this case; and that notice has
been provided to all persons required by statute in the most
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 7 of 15
effective means under the circumstances. Furthermore, based
upon the above and foregoing, the Court also concludes that
DCS has met its burden of proof, proving its petition to terminate
Father’s parental rights by clear and convincing evidence, to wit:
1. [J.M.] has been removed from his parents for more than
six (6) months pursuant to the terms of the dispositional
decree or the child has been removed from his parents’
care for at least fifteen of the past twenty-two months, and
2. There is a reasonable probability that:
a. The conditions which resulted in [J.M.]’s removal and
continued placement outside the home will not be
remedied;
b. That continuation of the parent-child relationship poses
a threat to [J.M.]’s wellbeing.
3. Termination of parental rights is in [J.M.]’s best interests.
4. There is a satisfactory plan for the care and treatment of
[J.M.], that being adoption.
The court must terminate the parent-child relationship if DCS
proves the elements of the Statute by clear and convincing
evidence. Ind. Code § 31-35-2-8.
JUDGMENT
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED: That DCS’ petition for termination of parental
rights is granted; and that the parent-child relationship between
the [J.M.] and [Father] is hereby terminated.
IT IS THEREFORE FURTHER ORDERED,
ADJUDGED AND DECREED: All rights, powers, privileges,
immunities, duties, and obligations, including any rights to
custody, parenting time, or support, pertaining to the relationship
are permanently terminated. Either parent’s consent to the
adoption of each child is not required.
Order pp. 4-6, 9. Father contends that DCS produced insufficient evidence to
sustain the juvenile court’s termination of his parental rights in J.M.
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 8 of 15
Discussion and Decision
[7] The Fourteenth Amendment to the United States Constitution protects the
traditional right of a parent to establish a home and raise his children. Bester v.
Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further,
we acknowledge that the parent-child relationship is “one of the most valued
relationships of our culture.” Id. However, although parental rights are of a
constitutional dimension, the law allows for the termination of those rights
when a parent is unable or unwilling to meet his responsibility as a parent. In re
T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,
parental rights are not absolute and must be subordinated to J.M.’s interest in
determining the appropriate disposition of a petition to terminate the parent-
child relationship. Id.[8] The purpose of terminating parental rights is not to punish the parent but to
protect J.M. Id. Termination of parental rights is proper where J.M.’s
emotional and physical development is threatened. Id. The juvenile court need
not wait until J.M. is irreversibly harmed such that his physical, mental, and
social development is permanently impaired before terminating the parent-child
relationship. Id.[9] In reviewing termination proceedings on appeal, this court will not reweigh the
evidence or assess the credibility of the witnesses. In re Invol. Term. of Parental
Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider
the evidence that supports the juvenile court’s decision and reasonable
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 9 of 15
inferences drawn therefrom. Id. Where, as here, the juvenile court includes
findings of fact and conclusions thereon in its order terminating parental rights,
our standard of review is two-tiered. Id. First, we must determine whether the
evidence supports the findings, and, second, whether the findings support the
legal conclusions. Id.[10] In deference to the juvenile court’s unique position to assess the evidence, we
set aside the juvenile court’s findings and judgment terminating a parent-child
relationship only if they are clearly erroneous. Id. A finding of fact is clearly
erroneous when there are no facts or inferences drawn therefrom to support it.
Id. A judgment is clearly erroneous only if the legal conclusions made by the
juvenile court are not supported by its findings of fact, or the conclusions do not
support the judgment. Id.[11] In order to involuntarily terminate a parent’s parental rights, DCS must
establish by clear and convincing evidence that:
(A) that one (1) of the following is true:
(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
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 10 of 15
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.
Ind. Code § 31-35-2-4(b)(2).
[12] Father contends that DCS presented insufficient evidence to establish that the
conditions leading to the removal of J.M. would not be remedied and that
continuation of the parent-child relationship posed a threat to J.M.
I. Reasonable Probability that the Conditions Resulting
in Removal Would Not be Remedied
[13] Father contends that the record does not establish that the reasons for J.M.’s
removal would not be remedied.
In determining whether “the conditions that resulted in the child
[ren]’s removal ... will not be remedied,” id., we “engage in a
two-step analysis,” [K.T.K. v. Ind. Dep’t of Child Servs., Dearborn
Cnty. Office, 989 N.E.2d 1225, 1231 (Ind. Ct. App. 2013)]. First,
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 11 of 15
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.” Id. (quoting [In re I.A., 934
N.E.2d 1127, 1134 (Ind. 2010)]) (internal quotation marks
omitted). 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,” Bester v. Lake Cty.
Office of Family & Children, 839 N.E.2d 143, 152 (Ind. 2005)—
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.” K.T.K., 989 N.E.2d
at 1231 (quoting Bester, 839 N.E.2d at 152) (internal quotation
marks omitted). 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. See
K.T.K., at 1234. 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.
In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (footnote omitted).
[14] Here, the condition that led to J.M.’s removal from Mother’s care was her and
J.M.’s positive tests for THC upon J.M.’s birth, and J.M.’s continued removal
from his parents’ care has resulted from Father’s ongoing incarceration and his
failure to participate in services or bond with J.M. The question, then, is
whether the juvenile court erred in concluding that Father was unlikely to
remedy those conditions. Father specifically challenges the juvenile court’s
findings that (1) Father was given the opportunity to appear personally for the
termination hearing, but refused to do so; (2) Father’s earliest release date
according to the Department of Correction is June, 2021; (3) Father has
attempted to address his addiction on and off through his life, but was never
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 12 of 15
successful; (4) overall, Father has failed to remedy the situation that brought
about the removal of J.M. and that, based on the pattern of behaviors and
continuing pattern of substance abuse by Father, there is not a reasonable
probability the situation which brought about the removal of the children is
likely to be remedied; and (5) there is no evidence that Father can remedy the
situation that brought about the removal J.M. from his care.
[15] As for the first challenged finding, a fair reading of the juvenile court’s order
indicates that Father’s alleged failure to attend the final hearing played no part
in the juvenile court’s decision. The juvenile court’s finding regarding Father’s
release date is, based on the evidence presented at the hearing, accurate, as
Father had not yet completed any program that altered his release date. The
third finding is also supported by the record, as Father acknowledged that
previous attempts to address his drug use have not been successful.
[16] Father’s challenges to the fourth and fifth findings seem to be based mainly on
his correct assertion that nothing Father did directly resulted in J.M.’s initial
removal from Mother’s care, as he was incarcerated at the time. Be that as it
may, it is apparent that the juvenile court is referring to J.M.’s continued
removal from Father’s care, which is due to Father’s incarceration, a byproduct
of his involvement with methamphetamine. In summary, Father’s challenges
to certain of the juvenile court’s findings do not help him, as the findings in
question are either not relevant to the juvenile court’s decision or are supported
by the record.
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 13 of 15
[17] In any event, while the Indiana Supreme Court has concluded that
“incarceration is an insufficient basis for terminating parental rights[,]” K.E. v.
Ind. Dep’t of Child Servs., 39 N.E.3d 641, 643 (Ind. 2015), there is far more here.
In addition to citing Father’s incarceration, the juvenile court found that Father
had not yet started the substance abuse treatment program offered through the
Department of Correction, Father had struggled with methamphetamine
addiction for the majority of his adult life, Father had attempted to address his
addiction on and off through his life without success, Father has a criminal
history spanning ten years including multiple felony level crimes to which he
either pled guilty or was found guilty, and Father’s criminal history indicates a
pattern of conduct that is unlikely to be remedied. Most of the above findings
are not challenged, and all are supported by the record. As the juvenile court
summarized: “Father’s incarceration alone is not reason to terminate his
parental rights, but Father’s past history of continuously reoffending and failure
to address his methamphetamine addiction is.” Appellant's App. Vol. II p. 12.
The juvenile court chose to give Father’s past history more weight as a predictor
of future behavior than whatever recent efforts at reformation he has made
while incarcerated, which it was entitled to do. Father has failed to establish
that the juvenile court erred in this regard.
II. Parent-Child Relationship
Posed a Threat to J.M.
[18] Father also contends that the juvenile court erred in concluding that the
continued parent-child relationship posed a threat to J.M. Indiana Code
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 14 of 15
section 31-35-2-4(b)(2)(B), however, is written in the disjunctive, meaning that
DCS must establish only that one of the following is true: “[t]here 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[, t]here is a reasonable probability that the continuation of the parent-
child relationship poses a threat to the well-being of the child[, or t]he child has,
on two (2) separate occasions, been adjudicated a child in need of services[.]”
Because we have already concluded that the juvenile court did not err in
concluding that the conditions that led to J.M.’s removal would not likely be
remedied, we need not address Father’s argument in this regard.
[19] The judgment of the juvenile court is affirmed.
Najam, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017 Page 15 of 15